M.A. ZAFAR, J.--- Brief facts of the case are that on 2.10.2000 Muhammad Ibrahim predecessor of the present petitioner filed a suit against Mst. Azizan Bibi and others alleging therein that in the year 1965, his brother Muhammad Bashir has sold out his land situated in Chak No. 267-R.B Jalundhar Tehsil and District Faisalabad in the presence of the witnesses for consideration of Rs. 24,000/-; that during the life-time his brother he asked him time and again to get the land in dispute transferred in his favour but since he was issueless. Therefore, due to the ulterior motives, he offered lame excuses and thereafter on his death he asked his legal heirs to get the suit land transferred in his name but they also offered lame excuses and finally got the suit land transferred vide mutation No. 1074, dated 23.8.2002 in their names being the legal heirs of Muhammad Bashir, Mst. Razia Bibi his daughter died, therefore, her daughter namely Jabeeha and lmreen were impleaded as a party and amended plaint was filed.
2. From the divergent pleadings of the parties, nine issues were framed and parties led their respective evidence. Ghulam Haider son of Ghulam Rasool claiming himself to be the witness of the sale in dispute appeared as PW-1 and testified that land in question was purchased from his brother for a consideration of Rs. 24,000/- about 30/35 years ago. He further testified that possession was already with the plaintiff but again said that when he paid the amount, the possession was. Not given to him despite his asking, for his vacation.
After the death of Bashir Ahmad, he asked his legal heirs for transfer of the property in his name who had promised to get the suit land transferred. Learned Trial Judge as well as Appellate Court held that the basis of the case is alleged oral agreement arrived at between the predecessors of the parties who were real brother inter se. The suit ought to have been filed for specific performance of oral agreement and no declaratory suit can be filed on the alleged oral agreement. The request of the petitipner for converting the suit for specific performance of agreement at the arguments stage without moving any formal application was turned down by the learned Additional District Judge, as a result thereof while upholding the finding recorded by the learned Civil Judge, Faisalabad vide judgment and decree dated 26.1.2007 on issues Nos. 1 & 3, the learned Additional District Judge, Faisalabad dismissed the appeal vide judgment and decree dated 16.6.2008.
3. Feeling aggrieved from the judgment and decrees passed by the Courts below the petitioner has filed this appeal and alongwith appeal an application under Order VI (Rule 17, CPC for amendment of the pleading has also been filed, in which a prayer has been made to allow the petitioner to amend the plaint without changing any structure of the suit under the relevant provision of law and suit for declaration having dismissed being not maintainable be allowed to be converted as suit for specific performance.
4. Learned counsel for the petitioner contends that amendment not bringing change or alteration in cause of action and vital necessary for effectual decision of controversy are normally allowed by the Courts and amendment sought for will not change the completion of claim or to set up altogether new case or a case diabolically opposed to one set up earlier in the pleadings in the same proceedings. He has placed reliance on case titled Qaid Jauhar and another v. Mst. Hajiani Hajra Bai and another (2002 CLC 551). He further submits that delay alone in applying for amendment or expiry period of limitation or increase in the Court-fee and change of jurisdiction cannot be a ground for refusing amendment in the plaint.
5. After hearing the learned counsel for the petitioners and perusing the record, I have observed that Muhammad Ibrahim the predecessor of the plaintiff filed a suit for declaration on 2.10.2000 alleging an oral agreement about the sale of the disputed property in the year 1965 in his favour for a consideration of Rs. 24,000/- after 35 years of the alleged agreement, Muhammad Bashir who allegedly entered into an oral agreement remained alive for 27 years, no step was taken during his life-time and after the death of Muhammad Bashir the present suit was even filed 8 years thereafter Muhammad Ibrahim expired during the pendency of this suit and in his place, his wife Rashidan Bibi was impleaded as a plaintiff being his legal heir. The assertion made in para No. 2 of the plaint was controverted by legal heirs of his brother in their written statement and once again while replying to amended plaint filed by Rashidan Bibi after the death of Muhammad Ibrahim. In preliminary objection No. 1 of written statement, the defendants/respondents asserted that suit ought to have filed for specific, performance of an agreement and suit having filed in the year 2000 in respect of an agreement allegedly entered orally in the year 1965 is barred by time. It was further asserted that during the life-time of their predecessor Muhammad Bashir, his brother Muhammad Ibrahim plaintiff did not take any step and thus he is stopped to file the present suit. Despite objection raised by the respondents side as far back as on 5.12.2000 while submitting written statement raising a preliminary objection that suit ought to have been filed for specific performance of agreement, neither the original plaintiff nor his successor took any step to get the form of the suit amended. Despite finding by the learned Trial Court no step was even taken during the pendency of the appeal before the learned Additional District Judge and first time in the present appeal a separate application was moved alongwith memo. Of appeal seeking amendment but the request of the petitioner after the expiry of 45 years cannot be allowed as a period of three years is provided under Article 113, Limitation Act and the said period starts from the date fixed for performance or if no such date is fixed when the plaintiff had noticed that performance is refused. Even counting the period from the date of submission of the written statement on 5.12.2000 denying any oral agreement between the predecessor of the parties, the present application having filed on 3.7.2008 alongwith main appeal cannot be allowed as by now the period for filing a suit for specific performance of agreement had expired, which provides a limitation of .3 years under Article 113 of the Limitation Act. The request of the petitioner to allow him to amend the plaint cannot be granted at this stage after 43 years. Resultantly, the finding of the learned Courts below on issues Nos. 1 & 3 are not open to any exception.
6. For the foregoing reasons, there is no force in this petition and the same is accordingly dismissed.
Civil revision .