1. ' KHALID ALI Z. QAIZ, J.---C.M.A. No,4639 of 2006: This is an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 praying therein to allow the plaintiff to amend the plaint in the above matter as there has occurred some inadvertent mistakes, omissions, typing errors and mis- statement under misunderstanding and misapprehension, for which, bona fide and fair amendments are necessary for the purposes of determining the real question in controversy between the parties. In support of instant application he filed affidavit stating therein that the word with the spelling "Ejaz", wherever occurring in the plaint, may be allowed to be replaced by spelling "Ajaz". The name "Muhammad Ejaz and Brothers" may also be allowed to be replaced with the name "Mohd. Ajaz Bros". On page 2, in para.3, line 3, after the word "supply business" the words "under the name and style Mohd. Ajaz Bros., and nominated the plaintiff's and defendant's brother Muhammad Ajaz, as proprietor of the firm against remuneration", omitted by way of inadvertence mistake and misunderstanding, may be allowed to be added. Further, on page 2, para 3, line 5, the word inadvertently typed as "Airport" may be allowed to be replaced as "Port'.
2. ' It is further stated in the affidavit that on page 2, para 3, line 14 after the word "Plaintiff" a "full stop" is to be inserted, and the words and sentences thereafter appearing in the said para.3, since do not adequately reflects the complete facts, are to be substituted and replaced as mentioned in para.6 of the affidavit in support of instant application. Further, on. Page 3, para.6 , line-5 after the word "Karachi" the words "which shop was purchased by the plaintiff from its original allottee through agreement of sale dated 12-1-1991, in the name of the plaintiff's and the defendant's real brother, Mr. Muhammad Ajaz and was later on got sub-leased by the Defendant" omitted by ways of inadvertent and misunderstanding may be allowed to be added and on page 4, in para.9, line 2, after the word "plaintiff" the words, figure "i,e, Shops Nos. 1, 2 and 3, Plot No,S.B. 37, (Nabi Centre), Block-13/A, Gulshan-e-Iqbal, Karachi and Shops Nos. 1, 2, 3 and 4 and offices bearing G-1 and G-2, Plot No,B-41 (Shazco House), Block-13/A, Gulshan-e-Iqbal, Karachi", omitted by way of inadvertent mistake, may be allowed to be added.
3. ' It is further stated by the plaintiff in the affidavit that on page 5, para 11, the words figures omitted by way of inadvertent mistake may be allowed to be added as mentioned in para-9 of the affidavit as well as on page-7; in the prayer clause (a), line 4 after the word "otherwise" a "full stop" is to be inserted and the words appearing thereafter may be substituted and replaced as mentioned in para. 10 of the affidavit of instant application which has been omitted by way of inadvertence.
4. ' In rebuttal to the contentions raised by the plaintiff in his application under discussion, the defendant filed counter affidavit declining the facts mentioned in the answering application by stating therein that instant suit filed by the plaintiff is hopelessly time barred and badly hit by the Articles 91 and 20 of the Limitation Act, 1908. As the term to file such suit is six years; when the right to sue accrues. Reliance is placed on 1991 Law Notes (Karachi) 645, 1945 Mad 248 (Full Bench); PLD 1984 Kar.97; 1995 MLD 397, Court was duty bound to examine the question of limitation irrespective of the fact whether such plea had been raised by the party in his pleadings or not. Reliance is placed on PLD 2003 Kar. 598, 2001 MLD 1037 and PLD 1985 SC 153. Further, the limitation is to run, when the fact entitling the plaintiff to have the instrument cancelled or set side become known to him. The instrument was admittedly (para.18 of the plaint) executed in October, 1987 when the suit property has been mutated/sub-leased in the name of defendant and no doubt that the plaintiff had the knowledge of the document in June, 1988, when he himself purchased the two offices namely G1 and G2 in the same project, therefore, period of limitation started running from October, 1987 and expired in October, 1990. In this regard reliance is placed on 1988 MLD 552, 2000 SCMR 1305 and PLD 1985 SC 133.
5. ' It is further rebutted that the amendment in the plaint shall change not only the cause of action but also alter the character of the suit. The issue of shops and offices at Shaco House has been settled by the learned SCJ/Rent Controller-III, Karachi East from which plaintiff is not only receiving current rent but also has received a huge amount of his share and others along with defendant are receiving and have received their share as mentioned in reply to the application under Order XL, Rule, 1 filed by the plaintiff and there is no question of settlement of an amount of Rs,28,90,000 is left. Defendant in support of his contentions following cases have been cited:--
(i) Amendment cannot be allowed to introduce a totally different, new and inconsistent case or substitute new cause of action for original one 1980 CLC 1866; 1977 SCMR 284.
(ii) the proposed amendment should not go beyond the scope of the original suit. Delay may not be fatal but conscious silence for long time certainly creates valuable right in favour of opposite party. Party cannot be allowed to substantially amend the pleadings by introducing new cause of action or change of the context of the original suit PLD 1995 Quetta 5; PLD 1996 Lah.
6. 429.
7. ' I have, heard the learned counsel for the parties and perused the material available on record.
8. ' Order VI Rule 17, C.P.C. Provides that the Court may at any stage of the proceedings allow either party to amend his pleading in such a manner and on such terms as may be just or all such amendment shall be made as may be necessary for the purpose of determining the real question and controversy between the parties. The power to grant amendment, being procedural is to be used for the purpose of dispensation of complete justice. The Court may not hesitate in allowing the amendment to cure the formal defects, which is bona fide and has been occurred due to mistake of facts or misapprehension. Reliance may be on 2008 CLC 946 and PLD 1985 SC 345. The proposed amendments as mentioned in detail in listed-application without changing in the cause of action does not involve any drastic change in the suit to seek the relief. It is the duty of the Court while deciding case to take into consideration the facts and circumstances of the case even the subsequent events which might have come into existence after the institution of the suit.
9. ' It is well-settled by now that the amendment in the plaint, can be allowed at any stage, even by the first and second appellate Court or in revision or even in appeal before the Hon'ble Supreme Court. Reference can be made to 2003 SCMR 379.
10. ' It may be observed that the amendment in the plaint will not change the nature and complexion of the suit and amendment in prayer clause (e) appears to be a consequential relief and is arising out of the same cause of action.
11. ' In my humble opinion in peculiar fact and circumstances of the case to avoid the multiplicity of the proceedings and to substantial justice amendments as proposed in the listed-application are necessary for the purpose of determining the real matter in controversy, therefore, application is allowed. Plaintiff is permitted to file the amended memo. Of plaint within fifteen (15) days with advance copy to the other side. The defendant is at liberty to file the amended written statement as well within thirty (30) days from the date of receipt of the copy of amended memo. Of plaint of the suit.
2. C.M.A. No,494/2007, this is an application for appointment of Receiver under Order XL, Rule 1 of the Code of Civil Procedure, 1908 praying therein to appoint a Receiver in respect of suit property i,e,'Shop No,2, Shazco House, Plot No,B-41, Block-13/A, Gulshan-e-Iqbal, Karachi with the power to manage and to collect rent of the suit property from the tenant, Messrs Meezan Bank Limited, Karachi and to deposit the same in the Hon'ble Court till further order. In support of instant application plaintiff filed affidavit stating therein that the suit property bearing Shop No,2, in project namely Shazco House, Plot No,B-41, Blockl3/A, Gulshan-e-Iqbal, Karachi is held by the defendant as benamidar for the plaintiff and he is the real owner. The defendant had no source of income except, his salary from the Sui Southern Gas Corporation. The suit property along with three other shops and two offices in the same project were purchased out of plaintiff's remittance sent through backing channels more than Rs,70,00,000 or through non-banking channels about Rs,73,69,926 and otherwise.
12. ' It is further stated in his affidavit that since he all along had been out of Pakistan, but for short visits during my vacations, the defendant, being his younger brother, used to look after his properties held whether in the name of plaintiff or his wife's name or in the name of his benamidars including the defendant. Plaintiff visited Pakistan in 1999 and thereafter visited Pakistan in 2005 after about six years. During his absence the defendant, rented out the said property at his back to Kudds' Restaurant and then to the present tenant Messrs Meezan Bank Limited. During plaintiff's long absence from Pakistan the defendant executed fake power of attorney, dated 20-10-1998 and also opened joint bank account in Bank Al Habib Ltd. No,1004-0071046596-50-9 on 5-10-2002 in collusion with Muhammad Ajaz brother of the plaintiff and the defendant. Defendant has also prepared a fake power of attorney by forging plaintiff's signatures, as appearing from the rent agreement, on the basis of which he rented out two offices which are sub-leased in plaintiff's name along with the suit property and three other shops in the same project namely Shazco House.
13. ' It is further stated that the suit property is in continuous imminent great danger of being damaged, wasted and dissipated at the hands of the defendant who, though benamidar, is malafidely dealing with the suit property.
14. ' In contrast to the contentions raised in C.M.A. No,494 of 2007 by the plaintiff, the Defendant filed Counter Affidavit and rebutted as - well as denied the facts mentioned in the listed application by stating therein that the application under reply namely C.M.A. No, 372 has already been disposed of on 8-3-2006 by this Court which is an estoppel by judgment. As defined in PLD 1987 SC 145 and PLD 1975 Kar.
26. The instant suit filed by the plaintiff is hopelessly time barred and badly hit by the Articles 91 and 20 of the Limitation Act, 1908. As the term of file for such suit is six years, when the right to sue accrues. Reliance is placed on 1991 Law Notes (Karachi) 645, 1945 Mad 248 (Full Bench), PLD 1984 Kar. 97, 1995 MLD 397, PLD 2003 Kar, 598, 2001 MLD 1037, PLD 1985 SC 153, 1988 MLD 552, 2000 SCMR 1305, 2000 SCMR 1305 and PLD 1985 SC 153.
15. ' It is further stated by the defendant that the suit property is in good condition and is being properly maintained by the tenant who is a bank. It is a composite property of five co- owners/landlords and rent is also being tendered of five co-owners/landlords and rent is also being tendered collectively and being distributed equally by the order of Rent Controller-III, East Karachi, there is no misappropriation neither any imminent danger to the property. In support of his contentions, defendant cited following cases:--
(i) The applicant applying for the attachment of property must show prima facie, that he has strong case and a good title of the property; 1997 MLD 181 (186) (Supreme Court AJ&K).
(ii) Mere recital in sale-deed that vendee has taken possession of suit-land was not sufficient to prove his possession---vendee having failed to make out case for attachment of the suit-land and appointment of receiver as visualized by O.XL R.1, Application of Vendee for attachment of suit-land and appointment of receiver was, rightly dismissed; 2000 YLR 2424 (2425) (Supreme Court (AJ&K).
(iii) Suit nor for manse profit nor for damages nor for compensation for use and occupation but merely for declaration that plaintiff's were owners of land; appointment of receiver held rightly refused; PLD 1977 Karachi 442 (43).
(iv) Application for appointment of a receiver was dismissed for right of parties were yet to be determined; 1992 CLC 2469, Karachi.
(v) Application for appointment of receiver being frivolous was dismissed with cost; 2003 CLC 1333 Karachi.
(vi) Applicant for obtaining the appointment of a receiver has to establish a prima facie title to the property; 2000 MLD 729 Lahore, 1998 MLD 1844 Karachi.
(vii) The Court on the application made for the appointment of the receiver, looks to the conduct of the party, who makes the application and will usually see that his conduct has been free from blame; 2005 YLR 3265, Karachi.
16. (viii)Application for appointment of a receiver, would have to make out strong prima facie case; PLD 1997 Karachi 409.
(ix) Balance of convenience was in favour of defendants relief prayed for refused; PLD 1965 Kar.
17. 584, 2001 MLD 1905.
(x) Plaintiff's title to properties disputed, cannot ask for appointment of receiver, person bona fide in possession could not be deprived of properties; 1974, SCMR 54, 2001 MLD 1905.
(xi) No imminent danger to property, receiver not appointed; 1980 CLC 494, 1974 SCMR 54; PLD 1975, 492.
(xii) Where party was running business for many years it would not be just and convenient to appoint a receiver, PLD 1992, Quetta 59, 1981 CLC 685.
18. ' I have- heard the, learned counsel for the parties and perused the material available on record.
19. ' It is a settleil principle of law for the purpose of Order XL, Rule 1 C.P.C., a party seeking appointment of a Receiver over the property involved in a particular suit, has to prove, at such interlocutory stage of the suit itself, by means of cogent evidence, that property involved in the suit is at a great risk and danger of getting destroyed at the hands of the other party, so as the same is likely to cause irreparable loss to the party and therefore it is most essential that a receiver may be appointed and directed to take over the possession of such a property.
20. ' In present case the plaintiff has claimed his right over the suit property which is in the name of the defendant but the payment was made by the plaintiff from his own funds as such the whole 'transaction was benami. The defendant filed his written statement and counter-affidavit's while denying the allegations levelled in the plaint and supporting affidavits and raised certain preliminary objections about the maintainability of the suit. It is pleaded that the defendant has purchased the suit property form his own funds in his own name thus he became the lawful true owner, seized and possessed the suit property.
21. ' Under the peculiar facts and circumstances of the case, it would suffice to state that until and unless, plaintiff proves his case satisfactorily to entitle him to the decree of declaration to the effect that the plaintiff is actual and original owner of the suit property and has paid the entire amount in respect of the suit property and the transaction executed on 26-10-1987 in favour of defendant to be Benami, he cannot claim any right, title or interest in the rental amount being earned by the defendant, from the disputed property. Hence, the listed-application under Order XL Rule 1, C.P.C. Is dismissed with no order as to costs.