' This first appeal is brought from the order of learned Additional District Judge, Rawalpindi, allowing the respondents (plaintiffs in the suit) to amend the plaint under Order VI, rule 17 read with section 107, Civil Procedure Code and consequently setting aside summarily the decree impugned in appeal before him for enquiry de novo in the case in the light of new plea to be added in the plaint.
2. The dispute in this case concerns succession to the landed property of Syed Ahmdd Shah and Akhtar Shah of village Jhangi Syedan, Tehsil and District Rawalpindi, both of whom died in distant past during British rule in the sub-continent and were admittedly governed by customary rule of succession. Respondents numbering 12 in all are the lineal descendants of Ameer Shah, a real brother of Gulab Shah grandfather of Ahmed Shah and great grandfather of Akhtar Shah. The respondents claimed 11/16th share in the property of the two deceased on the assertions that lands left by Ahmed Shah were on his death mutated in the name of his widow Mst. Noor Khatoon (defendant No, 1) as limited owner and his son Fateh Haider Shah in equal shares. The latter also died before Independence (1947) and the land falling to his share devolved on his widow Mst.
Ghulam Fatima (defendant 2) by way of limited estate. Akhtar Shah died issueless and one-half share in the land left by him was again transferred in the names of the said ladies. The plaint, however, does not throw any light on the disposal of the remaining land of Akhtar Shah. It appears, that the remainder half of the land of Akhtar Shah deceased was mutated in the name of his widow Mst. Sarwar Bibi which was also on her death transferred in the name of Mst. Noor Khatoon and Mst. Ghulam Fatima (defendants 1/2) both of whom were daughters of Lal Shah and real paternal aunts of Akhtar Shah. The respondents also said in the plaint that Ahmed Shah, Fateh Haider Shah and Akhtar Shah were Sunnis by faith. The respondents were the sole heirs of Akhtar Shah deceased. Mst. Ghulam Fatima and Mst. Jannat (defendants 2/7) were entitled to one-fourth and one-half share in the inheritance of Fateh Haider Shah as widow and sister respectively of the deceased. Mst. Ghulam Fatima had transferred her share in the land by way of gift in favour of Najam-ul-Hassan (defendant 3) to which she had succeeded as limited owner. Najam-ul-Hassan had in his turn sold away the land in favour of Mahmood Zafar, Zawar Shah and Azadar Shah (defendants 4 to 6). Alienation in favour of Najam-til-Hassan and the further transfers made by him in favour of defendants No, 4 to 6 were without authority and ineffectual against reversionary rights of the respondents. Limited estates of female heirs stood terminated by Act No, V of 1962. The respondents were, therefore, entitled to decree for their share (11/161 in the land in suits. A substantial portion of the land is said to have been acquired by the Government for a public purpose and compensation in lieu thereof was determined by learned Senior Civil Judge, Rawalpindi. The respondents also claimed payment to the extent of their share in the amount of compensation.
3. Mst. Noor Khatoon, Mst. Ghulam Fatima, Najam-ul-Hassan and Zawar Hussain Shah (defendants 1 to 3 and 5) filed joint written statement while Mst. Jannat Bibi who was impleaded as daughter of Ahmed Shah and sister of Fateh Haider Shah (defendant No, 7) filed separate written statement.
The defendants-appellants refuting the assertions of the respondent excepting the one that Ahmed Shah and Akhtar Shah were governed by custom maintained that both the deceased professed Shia faith and Fateh Haider Shah had pre-deceased Ahmed Shah. The lands left by the latter were mutated in the names of his widow Mst. Noor Khatoon. Mst. Ghulam Fatima widow of Fateh Haider Shah and Mst. Jannat Bibi daughter of Ahmed Shah deceased in equal shares. On termination of limited estates under the Act recurred to above the land was rightly transferred in their favour to the exclusion of the respondents under Shia Law of inheritance. Mst. Jannat defendant Nos. 7 in the suit out of which this appeal has arisen had also filed a separate suit (207 of 1967), against Mst. Noor Khatoon, Mst. Ghulam Fatima and Najam-ul-Hassan and the three transferees under the latter (defendants Nos. 1 to 6 in this case) that her father Ahmed Shah the last male-holder of the land was Shia by faith and that with the termination of life estates by virtue of Act No, V of 1962 she had also become the owner of the land held by defendants Nos. 1 and 2.
The cases were consolidated for trial after necessary issues arising from the pleadings were struck and further proceedings were recorded in the suit filed by the respondents. Voluminous evidence oral as well as documentary was led on both sides to prove their respective assertions. The issue "if Ahmed Shah and Akhtar Shah were Shia by faith" as was contended by appellants (defendants) was eventually answered in affirmative. Under the next issue learned trial Judge had found that the respondents were not entitled to any share in the estate of both the deceased. It is also established by evidence that Fateh Haider Shah had died during the lifetime of his rather Ahmad Shah (D 40/27). The suit filed by the respondents was in consequence of the findings on Issues Nos. 1-2 dismissed by judgment dated 6-3-1971 after protracted proceedings extending over a period of seven years. The suit filed by Mst. Jannat Bibi had ended in a compromise between the parties.
4. The respondents went in appeal before learned District Judge to challenge decree of trial Court dismissing their suit which came up for hearing before an Additional District Judge. After about a year of institution of appeal, the respondents came up with an application under Order XLI, rule 27, Civil Procedure Code for permission to examine additional evidence that Ahmed Shah had a daughter, namely, Mst. Imam Bibi who died during his lifetime. Mst. Jannat Bibi (defendant 7) was not the daughter of Ahmed Shah. Application was also made under Order VI, rule 17, Civil Procedure Code for amendment in the plaint so as to add therein the plea that was put forth in the application for permission to lead evidence at the stage of appeal that Mst. Imam Bibi was the only daughter of Ahmed Shah who had predeceased the latter and Mst. Jannat Bibi was not the daughter of Ahmed Shah. This application though contested by the appellants was allowed by learned Additional District Judge with a short order that the proposed amendment did not run counter to the averments already made in the plaint also adding thereto a sweeping remark that "it is imperative and just also to allow the amendment.
5. The assertion of the respondents that Mst. Imam Bibi was a daughter of Ahmed Shah and had died during latter's life time does not appear to be incorrect. Mst. Noor Khatoon (defendant 1) widow of Ahmed Shah had appeared as a witness before learned trial Judge and had said that Imam Bibi was a daughter of Ahmed Shah and had predeceased her father. Mst. Noor Khatoon had also admitted in explicit terms that Mst. Jannat Bibi was also a daughter of Ahmed Shah. Evidently, the fact that Mst. Imam Bibi was a daughter of Ahmed Shah and had died during his lifetime will not make any difference and the position shall remain the same whether the question of inheritance to the two deceased is regulated by Sunni Law or Shia Law of inheritance.
6. It was argued on the side of the appellants that amendment in the plaint allowed by learned Additional District Judge will have the effect of introducing a new case inconsistent with that laid in the existing plaint and contrary to the admissions of the appellants made in certain mutations concerning the property and the evidence adduced before the learned trial Judge. Ghulam Hussain Shah and Ali Asghar Shah (D. Ws 5/6) had stated that Mst. Jannat. Bibi (defendant No, 7) was daughter of Ahmed Shah and their version was not disputed during their cross-examination.
Safdar Hussain Shah plaintiff-respondent had also recorded his statement at the trial as P. W.
6. He had also not denied the status of Mst. Jannat I3ibi as daughter of Ahmed Shah. Mst. Jannat Bibiwas also shown daughter of the deceased in Mutation No, 1725 (D. 15) concerning inheritance of Mst. Sarwar Bibi widow of Akhtar Shah which was attested as far back as 1952 in the presence of Afzal Shah and Safdar Shah respondents. Mst. Jannat Bibi was also mentioned and accepted as daughter of Ahmed Shah in mutation Exhibit D/41-A attested in her favour after termination of life estates under Act No, V of 1962 although the mutation was contested on a different ground that Ahmed Shah was not Shia by faith. The respondents had hit upon the idea of asking for amendment in the plaint to keep the litigation alive and to harass the appellants,
7. The provisions in Order VI, rule 17, Civil Procedure Code empowered the Court to allow either party to alter or amend the pleadings at any stage of the proceedings as may be necessary for the purpose of determining the real question in controversy between the parties and the power should be liberal exercised so as to advance the interests of substantial justice. As a general rule amendment should not be refused if it occasioned no harm to the opposite-party except such as can be sufficiently compensated by costs, the party asking for amendment had acted in good faith, the amendment did not take away from the other side a legal right which had accrued to him b lapse of time and the amendment did not change the character of the suit. These are the widely accepted guiding principles for exercise of discretionary power under Order VI, rule 17, Civil Procedure Code but these are subject to several equally well-recognized exceptions. Leave to amend the pleading will be refused where the amendment would introduce a totally different, new and inconsistent case or the amendment will substitute a new cause on action for the original cause of action. I will refer here a few cases which have a sufficiently direct bearing on the point at issue in this case. In' Ratta v. Faikaur (1), a daughter of the last male-holder had filed suit for possession against a sister's son of her father. The trial Court dismissed the suit but on appeal by the plaintiff, learned District Judge set aside judgment of the Court below and passed a decree in her favour. The defendant had not alleged in the written statement that the property in dispute was ancestral but on appeal prayer was made on his behalf for permission to amend the pleading and to have the case sent back for further enquiry on this point. Learned District Judge declined to accede to this request and his view was upheld by the High Court. A similar situation arose in Karam Dad and others v. Muhammad Bibi and others (2). In that case also the prayer made by the plaintiff during second appeal to amend the plaint so as to enable him to allege that the land in dispute was ancestral qua the plaintiffs was turned down on the ground that the plaintiff's case throughout had been that the property in suit was non-ancestral. The issue as to the ancestral character of the property was actually framed in terms of the assertions of the defendants in the written statement, evidence was led and a finding recorded that it was non-ancestral. The proposed amendment introduced an inconsistent case and could not be allowed at a late stage in the appeal. It was also held that even if the amendment were allowed it would necessitate a remand for further enquiry as to ancestral nature of the property which could not be allowed as neither the Order XLI, rule 25, nor Order XLI, rule 27, Civil Procedure Code had any application to the case. Similar view was expressed by Madras High Court in a Full Bench case Vedaehala Chattiar v.
Ameena Bi Ammal and others (3), that it is far too late at the close of plaintiff's case to allow the defendant to set up a new case by amendment of an issue framed in the suit, nor will the High Court allow the amendment in second appeal when it would mean the remanding of the case for taking further evidence. This principle will equally apply to amendment of pleadings in the first appeal which necessitated re-opening of the case for further enquiry. The case of Gulab and another v. Fazal Ellahi (4), is also reasonably closer to the instant case. In that case, the last male- holder of the land was succeeded by a widow of his pre-deceased son. On her death the revenue authorities sanctioned mutation of the land left by her deceased father-in-law 1/4th in favour of her brother and 3/4th in favour of heirs of the last male-holder. The said heirs filed a suit that the (1)
35 P L R 69 (2) A I 1 1944 Mad. 121 (3) AIR 1942 Lah. 1 (4) PLD 1955 Lab. 26 daughter-in -law of the last male-holder had occupied the land merely In lieu of maintenance in her capacity as widow of the predeceased son of the last owner and she had no ownership rights in the property. The brother of the deceased lady took up position in the written statement that she had inherited the land in question as an heir of her husband who was last male holder and not merely in lieu of her right of maintenance. In the alternative it was pleaded that if it was established that the husband of the lady had died in the life-time of his father even then she must be deemed to have succeeded by virtue of right of representation of her deceased husband under Custom. It was, therefore, asserted that she was the rightful owner of 1/4th share of the property which had now been mutated in favour of the defendant by the revenue authorities correctly. Necessary issues were framed by learned Trial Judge. The defendant put in an application for permission to amend the written statement that the deceased lady had succeeded to the property as the mother of her children who were the last male-holders. In the alternative it was also sought to be pleaded that she took possession of the property without any semblance of right on the death of her father-in- law and acquired a title by prescription over it. It was held that application so far it concerned the pleading of adverse possession of the lady could not be allowed. An amendment which could displace the plaintiff's suit or would introduce a new and wholly inconsistent case must not be allowed despite the fact that the powers of the trial Court to allow the amendment at any stage are fairly wide. In Babu Khan v. Municipal Committee, Murree (1), land which belonged to Municipal Committee Murree was leased out to a non-Muslim for a period of 10 years, renewable at the option of the lessee on the same terms and conditions for a further period of 10 years. The lessee constructed two shops on a portion thereof and let them out to Babu Khan petitioner before the Supreme Court and his uncle during subsistence of the lease. On partition of the country, the lessee migrated to India and the petitioner continued as a tenant under the Rehabilitation Department by paying rent to that Department. Subsequently, the property was purchased by the petitioner in public auction held under the Settlement Law and permanent transfer deed was also issued in his favour. The Municipal Committee sought to eject the petitioner on the ground that the period of the lease had expired. The petitioner filed suit for a declaration to the effect that the lease in question stood renewed up to the end of 1971, or in the alternative fora decree for specific performance, of the contract of lease of the said land. The suit was dismissed by trial Court whose judgment was upheld in appeal both by an Additional District Judge and the High Court. The petitioner had also applied during second appeal for amendment in the plaint so as to include therein the contention that after the property had been placed into the compensation pool under the relevant law it had vested in the Government free from all encumbrances and, therefore, when it was transferred to the petitioner he became the full-fledged owner. The amendment was disallowed by the High Court and the order was upheld by their Lordships of Supreme Court with the view that the amendment sought to introduce a completely new case on which no evidence had been led and the parties had never joined issue at any earlier stage. Lastly, reference be made to the case: .Bashir Ahmed v. Qaiser Aii (2). The relevant observations can be seen at page 512 of the report which are: "It is true that the rule consistently laid down in these precedents is that although the powers of amendment are wide and should always be liberally exercised to secure proper administration 1969SCMR 29 (2)PLD1973SC507 of justice, yet an amendment which involves the setting up of a new case and alters the real matter in controversy between the parties ought not to be allowed."
8. Learned counsel for the respondent defended the impugned order relying on the observations made by learned Additional District Judge that the plea sought to be added through amendment did not run counter to the assertions in the original and that the amendment did not alter character of the suit. It should pass one's comprehension how the amendment was not inconsistent with the existing plaint. The plea in the original plaint that Mst. Jannat was daughter of Ahmed Shah and was entitled to 1/2 share as sister of Fateh Haider Shah deceased and the new plea that she was not daughter of Ahmed Shah ran counter to each other and were inconsistent as the two pleas could not stand together. The amendment will change radically the complexion of the controversy and could not be allowed at the stage of appeal after eight years of the start of litigation. A defeated litigant could not be permitted to evade the defeat] devising a new case. A Court of appeal is not justified in exposing a part who has obtained a decree to the brunt of a new attack.
9. Learned counsel for the respondents has referred to the judgment of learned Single Judge of this Court in Mst. Inayat Bibi v. Abdul Aziz an others (1) and a recent judgment of Supreme Court in M. G.
Hassan and others v. Sheikh Riaz-ul-Haq and 5 others (2). In the case of Mst. Inaya Bibi, Sher Mohammad father of the defendant in the suit had made of his land in her favour. The relations of Sher Muhammad filed a suit for a declaration that the gift was opposed to the law and custom governing Sher Muhammad and was, therefore, void and ineffective against then reversionary rights. Sher Muhammad died during pendency of the suit whereupon the plaintiffs made an application for amendment of the plain so as to claim possession of the disputed land instead of a mere declaration. Learned Trial Judge allowed the plaintiffs to amend the plaint t claim possession of the land by way of consequential relief. The order of the trial Court was challenged in revision before the High Court at the contention that the order allowing the plaintiffs to claim possession by way of consequential relief amounted to suo motu order of amendment which was not permissible in law. The contention was rejected and it w held that the order could not be treated as suo rate direction by the Court since the impugned order was made by the Court in pursuance of the plaintiff's application and not of its own motion. In the next case before the Supreme Court (1979 SCMR 15) the plaintiffs were granted permission to amend the plaint which was confined to the addition of a single par pause in the relief relating to the award of mesne profits/damages/co sensation for use and occupation of the property in question by t defendants from such date as the Court might hold the plaintiffs entitled possession thereof up to the date of its actual delivery.
The contention against propriety in law of the amendment were turned down on ground that mesne profits could be awarded by the Court in a fit case e without a specific prayer having been made in the plaint. The plea to the new relief to be added through amendment was barred by limitation was not sustainable in law and otherwise irrelevant also. The respondent could file a separate suit and there was no reason why they could not allowed to amend the plaint. The amendment which did not take a legal right which accrued to the defendant or change the complexion of suit could be allowed in suitable cases. Both these cases do not (1) PLD 1978 Lah.
1435 (2) 1979SCMR 15 even a shadow of semblance with the point at issue in this appeal if amendment which introduces a totally different and new case could be allowed though the character of the suit may not be changed. Learned counsel for the respondents had also called attention to the case of Bashir Ahmed v. Qaiser All (1) referred to in M. G. Hassan and others' case which has already been noticed in the foregoing lines in a different context. Bashir Ahmed's case was cited in 1979 SCMR 15 for the proposition that petition in revision will be competent to challenge order allowing amendment of pleadings. In Bashir Ahmed's case amendments which were allowed by the High Court setting aside order of learned trial. Court rejecting the application were held to be in the nature of consequential reliefs arising from the main cause of action on which the original suit was based, the amendment; were in fact intended to remove the objections raised by the defendant in the suit as to maintainability of the suit under section 42, Specific Relief Act, and could hardly be described as setting up a new case instead of the original claim. As stated in the foregoing lines this judgment rather supports the case of the appellants that the amendment which involves the setting up of a new case and alters the matter in controversy between the parties are not to be allowed.
10. As a result of the above discussion, I hold that the order allowing amendment in the plaint which had the effect of setting up of a totally new and different case was not justified in law. The appeal is accepted and order of learned Additional District Judge is set aside. Costs in this appeal to abide the event.
11. The appeal shall be heard and disposed of on merits. Record be 'sent to learned District Judge, Rawalpindi before whom the parties shall appear on 27-3-1980 for fixation of a date of hearing in the appeal for a :period not exceeding two weeks. The appeal shall preferably, be decided by learned District Judge himself or made over to the senior-most Additional District Judge. Final judgment shall be announced by or on 15-4-1980.
(1) PLD 1973 SC 507