' MUHAMMAD AMEER BHATTI, J.--- Through this Constitutional Petition, the petitioner has challenged the order dated 26-2-2011, passed by the learned Additional District Judge Khushab through which he has allowed the application of the respondents Nos.1 to 6 for amendment of plaint.
2. The brief facts of the case are that the respondents Nos.1 to 6 filed a suit for declaration that they are owners in possession of land bearing Khata No,2235 measuring 136-K and 14-M situated in Village Gunjial Tehsil and District Khushab and the Mutation No,1177 dated 22-1-1989 and subsequent mutations passed are based on fraud and misrepresentation and having no legal effect against the rights of the plaintiffs.
3. The claim of the plaintiffs in the plaint is that their grandfather had died. The plaintiffs in the opening Para of their plaint mentioned that the grandfather, the owner of the disputed land had died in the year 1962. However, in the second Para they reiterated this fact in some other words that after the death of grandfather of the plaintiffs about 31/32 years, the impugned Mutation No,1177 was got sanctioned on 22-1-1989 through which the respondents have been declared the sole owners and the plaintiffs/respondents have been deprived of the inheritance of their grandfather.
This happening took place due to the fact that the mother of the grandfather had died before the demise of the grandfather of plaintiffs. In this view of the matter, the petitioners challenged this mutation being legal heirs and entitled to the inheritance of the grandfather under the Muhammadan Law..
4. The written statement was filed by the present petitioners/ defendants where they alleged.That Muhammad Afzal, the original owner had died before 1962 but in the same Para, it is mentioned that perhaps Muhammad Afzal had died in the year 1984. After closing of evidence of the parties, the respondents/plaintiffs filed an application for amendment of the plaint to the extent that keeping in view the assertion in the plaint, the amendment to the extent that grandfather Muhammad Afzal had died before 1962, be allowed to be substituted with 1962. He further added that from the second Para, where it has been mentioned that the mutation impugned has been sanctioned 31/32 years after the death of the original owner/Muhanunad Afzal/grandfather of the plaintiffs which comes before 58, hence the amendment sought by the plaintiffs/respondents would not change the complexion of the plaint, as it is only for clarification of the earlier assertion made in the plaint.
5. The application was contested by the present petitioners/defendants and the same was rejected by the learned Trial Court vide its order dated 7-4-2010. This order was challenged before the learned Revisional Court/respondent No,7 who vide impugned order dated 26-2-2011, accepted the application. Hence this petition as there was no other alternate remedy.
6. Learned counsel for the petitioner contends that after completing the evidence of the parties, there was no justification for the respondents for tiling application of amendment and the order impugned is illegal and unlawful. Further alleged that it is not a stage that the amendment can be allowed after the recording of evidence and it will change the complexion of the plaint. Relying on "2011 CLC 130,O.VI, R-17 --- amendment of pleadings---New plea---Belated application---Suit was filed on 26-10-2007 and application for amendment of pleadings, was filed on 2A-3-2010-Both the Courts below dismissed the application and appeal filed by plaintiffs---Validity---Plaintiffs failed to give any explanation for not taking up the pleas sought to be introduced through proposed amendments at the initial stage of trial---Application filed by plaintiffs was just a device to lead evidence through back door---Plaintiffs were not permitted to achieve indirectly which could not be achieved directly-- Both the courts below had passed orders in accordance with law and plaintiffs failed to point out any illegality or material irregularity or that the courts had failed to exercise their jurisdiction vested in them---High Court refused to allow amendment in pleadings-- -Petition was dismissed in circumstances".
' Seeking amendment after such a long delay, the learned counsel for the petitioners has relied on the judgment "2008 SCM R 654, Ss.42 and 54---Civil Procedure Code (V of 1908), S.115 & O.VI, R-17--- Constitution of Pakistan (1973), Art.185(3)---Suit filed by petitioners having been dismissed by Trial Court, petitioners filed appeal before Appellate Court against Judgment of Trial Court---After three years of pendency of said appeal, petitioners realizing certain deficiencies in plaint, submitted application for seeking amendment of their plaint and Appellate Court below, after almost 14 years of filing of suit, allowed application of petitioners for amendment of plaint subject to payment of costs and permitted petitioners to amend their plaint and also permitted respondents to file amended written statement---Respondents filed revision before High Court against orders of Appellate Court below which was allowed by High Court and said order of High Court had been impugned by petitioners before Supreme Court through petition for leave to appeal---Held, no illegality was found in discretion exercised by high Court which had rightly found that fact which was to be pleaded through amendment of plaint, had already been pleaded---law would favour only the diligent and not those who were grossly negligent it was an additional ground on which order in question of Appellate Court below could have been struck down by High Court---Petition for leave to appeal was dismissed and leave refused". 2005 SCM R 1945, O.VI. 17---Amendment of pleadings---Principle---Amendment sought in suit would not only change the nature and character of the suit but it would also nullify the judgments and decrees passed by the Courts telow---Effect---High Court had rightly not allowed such amendment of plaint".
7. On the basis of these judgments, the learned counsel for the petitioner prayed that while accepting this writ petition, the order passed by the respondent No,7/Revisional Court be set aside and declared it illegal and without lawful authority, having no legal effect.
8. On the other hand, the learned counsel for respondents Nos.1 to 6 contend that the amendment in the pleadings can be allowed even at the stage of appeal and there is no bar for the amendment and mere delay is no ground for refusing amendment in the plaint. Relying on "1986 SCM R 1799, ---O.VI.R.17---Amendment of plaint---Delay in applying amendment or expiry of limitation is no ground for refusing amendment in plaint---Rules of procedure are intended to secure proper administration of justice which demands that full power of amendment must be enjoyed by Court in order to achieve object of complete adjudication of disputes". Further contends that admission made in the plaint on account of mistake of fact can be rectified even at any stage by getting the amendment.
9. It is pertinent to note that the mentioning of year 1962 and in subsequent stage clarification to the effect: that the mutation was sanctioned 31/32 years after the death of the owner, the grandfather clarified the earlier specified year i.e. 1962. It is contradictory on the one hand that he has mentioned 1962, but on the other hand on the other para, keeping in view 31/32 years from the date of mutation comes to 57/58. So, the intention of the plaintiffs can be inferred even clear at the time of drafting of the plaint but inadvertently some mistake occurred by not using the word 'before' 1962, which was required to be inserted in the plaint. Although, in the written statement filed by the respondent himself admitted that Muhammad Afzal, the owner of the land had died beft.Re 1962. For that matter, the laws laid down by this Court and the Hon'ble Supreme Court of Pakistan 1988 SCM R 322, where it is held that admission made by mistake could be directed by the Court to be withdrawn by amendment even if such admission was made in pleadings. In other reference 1995 M LD 290, it is held that withdrawal of admission made on account of mistake of fact is misapprehension and could be allowed to be withdrawn. In other judgment 1984 CLC 2386, the correction of clerical mistake has been allowed to be made under Order VI, Rule 17, C.P.C.
10. In the light of foregoing facts and circumstances, the delay alone cannot be considered as a ground for refusing the amendment. Moreover, from the pleadings of the parties, the factum of death of the owner of land before 1962 is already floating on the surface of the pleadings of the parties. No prejudice has been caused by the respondent No,7 by allowing the amendment to the respondents. The power vested in respondent No,7 has been exercised by him in accordance with law, who has not committed any illegality or irregularity by exercising the power under Order VI, Rule 17, C.P.C., thus no interference is warranted by this Court. The upshot of the above discussion is that this petition has no merit and the same is dismissed.