1. C.M.A. No,4457 of 2007 ' NADEEM AZHAR SIDDIQI, J.---By this application the defendant No,3 has prayed for amendment in the written statement filed on 15-2-2006.
2. ' The learned counsel for the defendant No,3 submits that the proposed amendments are neither inconsistent nor destructive to the facts already pleaded in the written statement. He further submits that the amendments are necessary to resolve the controversy between the parties. He further submits that the amendment in the written statement is to be liberally construed and by proposed amendment no prejudice will be caused to the plaintiff. He relied upon the reported case of Sardar Begum v. Malik Khalid Mehmood 1986 CLC 2342.
3. ' The plaintiff has filed counter affidavit and opposed the application. The learned counsel for the plaintiff submits that proposed amendments in the written statement already filed is vexatious and inconsistent with the pleas already taken in the written statement and by way of proposed amendment the defendant No,3 is attempting to change the nature of his defence, which is not permissible under law. He then submits that proposed amendments are based on afterthoughts and forged and fabricated documents. He then further submits that this application has been filed after the receiver was appointed and that order was confirmed upto the Honourable Supreme Court. He then submits that admissions made in the earlier written statement can not be resiled subsequently. He relied upon the following reported cases:--
(1) Ghulam Haider v. M. Ayub (2001 SCM R 133)
(2) Secretary Govt, of W.P. v. Kazi Abdul Kafil (PLD 1978 SC 242)
(3) Nazir Hussain Rizvi v. Zahoor Ahmed (PLD 2005 SC 787).
(4) Quaid Jauhar v. Hajra Bai and another (2002 CLC 551)
(5) Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 385)
4. 'The defendant No, 3 has filed rejoinder in rebuttal. The learned counsel for defendant No, 3 states that no inconsistent plea has been raised in the proposed amendments and the proposed amendment will not change the defence taken by the defendant No,3.
5. 'The learned counsel for defendant No,2 also opposed the application and adopted the arguments of Mr. Abid S. Zuberi. He admits the execution of agreement with the plaintiff and denied the agreement executed with the defendant No,3 and has also disputed the possession of both the parties.
6. 'Mr. Khizer Asker Zaidi, Asst, A.G. States that it is a dispute between the plaintiff and private defendants and the official defendants have nothing to do with the dispute. The plaintiff has filed suit' for specific performance, injunction, possession and cancellation. The prayer of cancellation is in respect of purposed sale agreement between defendants Nos. 2 and 3 and has also claimed the possession of plot from the defendants Nos. 2 and 3.
7. 'Earlier the defendant No,3 has filed written statement and denied the contents of the plaint and claim that he is in possession of suit property. By proposed amendments the defendant No,3 wants to plead that he has purchased the suit property from defendant No,2 and he is in possession on the basis of said agreement. The plaintiff in para. 9 has pleaded that the agreement between the defendant Nos.2 & 3 is forged and fabricated document. The defendant No,2 has also disputed the agreement by saying the defendant No,3 in collusion with plaintiff published fake agreement and occupied the said properties on the basis of fake sale agreement between the defendant No,3 and defendant No,2. From perusal of the proposed amendments it appears that the defendant No,3 wants to take specific pleas with regard to his possession and interest in the property in question.
8. From comparing the written statement with the proposed amendments it can be safely said that pleas raised now cannot be said to be inconsistent with the pleas raised in the written statement as in the written statement the contents of plaint were denied without taking any specific pleas or defence.
9. The principle applies to an application for amendment of plaint is also applicable to an application for amendment of written statement. The basic rule is that the defendant should not be allowed to make out a new case and to resile from the admission if any made in the written statement. The defendant can be allowed to raise additional grounds or defence by way of amendment if they are not inconsistent with the original defence.
10. 'In the reproduced case of Mst. Sardar Begum v. Malik Khalid Mehmood (1986 CLC 2342) it has been held as under:- "A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute cause of action or nature of his claim, but the same principle will not be applicable to the amendment of the defence or written statement. Adding a new ground of defence or substituting or altering a defence, does not raise the same problem as adding, altering or substituting a new cause of action. The Courts, therefore, are inclined to be more liberal in allowing amendment in defence than of the plaint."
11. 'In the reported case of S. Nazir Hussain Rizvi v. Zahoor Ahmed (PLD 2005 787) it was held as under:- "There is no cavil with the proposition that the proposed amendment can neither change the complexion of the suit nor introduced a new cause of action. No amendment will be allowed where its effect would be to convert the character of the suit. "
12. 'In the reported case of Ghulam Haider v. Muhammad Ayub (2001 SCM R 133) the amendment in written statement at appellate stage was not allowed on the ground that it would change the complexion of the plea taken earlier in the written statement and the respondent who had successfully established his case before the trial Court by producing will have to once again establish his title over the property because if the amendment is allowed then the case has to be remanded to the trial Court. The facts of the case are not applicable to the present case.
13. ' In the reported case of Secretary to Government of W. Pakistan v. Kazi Abdul Kafil (PLD 1978 SC 242) the trial Court and the High Court refused permission to amend the written statement so as to enable the Government to withdraw the admission in the written statement. This case is also not applicable to the case in hand.
14. ' In the reported case of Quaid Jauhar v. Mst. Hajra Bai (2002 CLC 551) the amendment in the written statement was refused on the grounds that predecessor having signed written statement filed in the year 1979 cannot be allowed to retract from admissions made therein as some amounted to admission under Order VIII, Rule 5, C.P.C.
15. ' In the reported case of Ghulam Bibi v. Salsa Khan (PLD 1985 SC 345) it has been held as under: ~ "The foregoing interpretation is also in accord with the mandatory language used in rule 17 to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy"
16. ' Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow the application made by a party in that behalf but is also bound to direct the amendment for the said purpose.
17. Thus, the rule can be divided into two parts. In the case falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes duty of the Court to permit the amendment. "
18. The proposed amendments appear to be necessary for determining the real question in controversy and will also curtail the multiplicity of proceedings. The plaintiff himself sought the cancellation of the agreement which the defendant No,3 has now pleaded in the proposed amendments. The proposed amendments are not inconsistent with the earlier written statement.
19. The issues have not been framed and if the proposed amendment is allowed no prejudice will be caused to the plaintiff and he will get sufficient opportunity to rebut the claim of defendant No,3.
20. ' In View of the above, application is allowed as prayed. Amended written statement be filed in Court within 15 days.
21. C.M.A. No,4673 of 2005: ' By this application the plaintiff has prayed that the defendants Nos.2 & 3 may be restrained from creating third party interest in the suit property and from raising any construction thereon and restrain defendant No,l from regularization.
22. ' Defendants Nos.2 & 3 have filed counter affidavit to the listed application.
23. ' During course of argument the learned counsel for plaintiff has informed that vide order dated 29- 3-2007 the Nazir was appointed as Commissioner to take over possession and management of disputed properties which order was challenged in HCA No,77/2007 which was dismissed on 21-5- 2007. He then submits that the petition filed by defendant No, 3 before the Honourable Supreme Court was also dismissed and presently the property in question is in possession of the Nazir of this Court.
24. ' Since the property is in possession of the Nazir the interest of the plaintiff is fully secured. The appointment of Nazir as Commissioner to take over the possession of the property which was maintained upto the level of Supreme Court is sufficient to hold that the plaintiff has a prima facie case in his favour. The application is disposed of with direction to the parties to the suit to maintain status quo till further orders with regard to the possession and title of the suit property. C.M.A.
25. No,2124 of 2008: C By filing this application the defendant No,3 has prayed for correction in the amendments proposed in the written statement. The learned counsel for defendant No,3 states that the corrections are formal and will not change the complexion of amendment. From the perusal of correction the contention of the learned counsel appears to be correct. Clerical or typographical mistakes or error from accident slip or omission if not changing the complexion of the proposed amendment can be corrected by the Court.
26. ' In view of above application is allowed as prayed. The defendant No,3 while filing of amended written statement may effect the correction in the proposed amendment.