SYED AKHLAQ AHMAD, J. --- Through this writ, Aziz Ullah Khan/petitioner has challenged the validity of the impugned orders dated 27.9.2010 passed by the learned Additional District Judge, Mianwali camp at Esa Khel dismissing the revision petition against the order dated 5.6.2010 passed by the learned Civil Judge, Esa Khel whereby he accepted the application of Mst. Ghulam Fatima/respondent No. 1 for amendment of plaint.
2. Contents of the writ petition _show that on 28.1.2005 Mst. Ghulam Fatima were of Saif Ullah Khan and Saifullah Khan/respondents Nos. 1 and 2/plaintiffs filed suit for permanent injunction restraining Aziz Ullah Khan petitioner/defendant and two others from interfering in the passage 12 feet were and 1200 feet in length in any manner' whatsoever. After framing of issues, both the parties led their oral as well as documentary evidence. The case was ripe for final arguments when respondents Nos. 1 and 2/plaintiffs moved an application under Order VI, Rule 17, C.P.C. For amendment of plaint which has allowed by the learned Civil Judge, Esa Khel vide his order dated 5.6.2010. Against this decision, the petitioner/defendant filed a revision which was dismissed by the learned Additional District Judge, Esa Khel vide his order dated 5.6.2010. Hence this writ.
3. Learned counsel for the petitioner/defendant contends that the proposed amendment will change the entire nature of the suit and the defence of the petitioner will also be prejudiced. So the same should not be permitted at the belated stage.
4. Operative para No. 4 of the impugned order dated 5.6.2010 passed by the learned Civil Judge, Esa Khel reads as under:- "This is a suit for permanent injunction' wherein evidence of both the parties is already complete.
Now, plaintiff at this belated stage has filed petition for amendment. Perusal of file reveals that Khasra No. 3305 has already been mentioned by plaintiffs as co-sharer whereas now plaintiffs want to and in the plaint that they are also co-sharers upto the extent of Khasra Nos. 3503 and 3504. Jamabandi for the year 2002-03 produced by the plaintiff reveals that vide Mutation No. 6054 of exchange, plaintiffs became co-owner. Copy of Mutation No. 6054 reveals that this mutation was attested on 27.6.2007. It means that plaintiff became owner during the pendency of the suit . The amendment sought for by the plaintiff will not change the nature of the suit as plaintiffs will only be allowed to and some more Khasra numbers in their claim. Defendants will have right of rebuttal, therefore, no prejudice will be to them. Since the amendment in the plaint is necessary to decide the controversy once for all, therefore, the considerable delay in filing of this petition since attestation of mutation in favour of plaintiffs, can be compensated in form of money.
In the light of above discussion, this petition is accepted upto the extent that plaintiffs are allowed to and their right of co-sharer ship alongwith right to produce relevant documents. Since this application has been filed with a considerable delay, therefore, it is accepted subject to cost of Rs.
1000/- which shall be payable by the plaintiffs to the defendants. Now to come up for amended plaint on 22.6.2010."
5. Operative paras Nos. 6 and 7 of the order dated 27.9.2010 passed by the learned Additional District Judge, Mianwali Camp Esa Khel reads as under:- "6. Perusal of the record reveals that respondent is co-sharer in Khasra No. 3305. As per attached copy of jamabandi for the year 2002-2003 vide exchange Mutation No. 6054, dated 27.6.2007 respondents have also become co-sharer in khsara Nos. 3503 and 3504. Meaning thereby respondent became owner in the above-said Khasra numbers during the pendency of the suit. So, amendment sought by the respondents/plaintiffs will not change the complexion of the suit.
However (sic) litigation between the parties, amendment of the plaint is essential.
7. Upshot of above discussion is that while passing the impugned order, learned Trial Court has not committed any illegality or irregularity, So, revision petition is not sustainable in the eye of law and the same is hereby dismissed. Parties are left to bear their on costs."
6. After hearing the learned counsel for the petitioner and going through the documents available on the file, I find that the nature of the suit, insofar as its cause of action is concerned, is not changed by the amendment. If the cause of action does not change, the main substance of the suit and its nature would not change.
Even otherwise the Constitution petition against any interim order arising out of civil proceedings is not maintainable unless it suffers from any jurisdictional error which has not been pointed out before this Court. This being so, the petition has no merits and the same is dismissed in limine. In this regard, I rely upon 'Khan Muhammad v. Khizar Hayat and another' (2005 M LD 67 Lahore) and 'Muhammad Bashir, etc. v. Riyasat Ali, etc.' (NLR 1988 Civil Lahore 535). .