' MAMOON RASHID SHEIKH, J.---The brief facts necessary for adjudication of this petition are that the petitioners filed a suit against the respondents for specific performance of a contract on 26-10- 2007. The respondents filed a written statement on 11-1-2008. Issues were framed on 30-1-2008, thereafter the petitioners led their evidence. However, on 30-7-2009 the right of the petitioners to lead evidence was closed. Feeling aggrieved the petitioners challenged the same before the District Judge, Lahore through a revision petition but the same was returned to the petitioners to be filed before this Court as the said Court lacked pecuniary jurisdiction in the matter. The said petition bearing C.R. No,2608 of 2009 was dismissed by Mr. Justice Mian Saqib Nisar (as he then was) on 17-12-2009. The petitioners' CPLA No,266 of 2010 against the order dated 17-12-2009 is pending before the Hon'ble Supreme Court of Pakistan. In the meanwhile, after the evidence of the respondents had been recorded and the suit was fixed for final arguments, instead of addressing arguments the petitioners obtained a number of adjournments and finally on 24-3-2010 moved an application for amendment of the plaint. The respondents resisted the same, inter alia, on the ground that the proposed amendments are being sought at a belated stage, there is no nexus between the proposed amendments and the suit and if the proposed amendments are allowed the nature of the suit would be changed, moreover, the sought for amendments would change the form of the suit from a suit for specific performance of a contract to a suit for recovery of money/damages. The learned trial Court through order dated 17-4-2010 dismissed the petitioners' application by holding that the application is not maintainable at such a belated stage.
2. Feeling aggrieved the petitioners have filed this petition. It is contended that the learned trial court has passed the impugned order illegally and with material irregularity without keeping in mind the precedents in this respect. It is further contended that there is a host of authorities which support the petitioners' contention that amendment in the pleadings can be made even at the appellate stage before the Hon'ble Supreme Court of Pakistan. The nature of the suit would not be changed by the proposed amendment. The petitioner is only trying to bring on record the nature of the developments made in the property by the petitioners during their possession thereof. In case the factum of development is not established, the petitioners shall suffer loss. Moreover, the damages suffered by the petitioners on account of the mutation in question also need to be brought on the record. The prayer of the plaint as it exists covers the relief being sought through the amendments, hence, the nature of the suit remains the same. Reliance has been placed on the judgments reported as Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Mst. Rahim Noor v. Mst. Salim Bibi and 2 others (PLD 1992 SC 30), Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCMR 824) and SEMCO SALVAGE PTE Limited v. M.V. Kaptan Yusuf Kalkavan and another (1993 SCMR 593) and Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191).
3. The learned counsel for the respondents has vehemently opposed the stand of the petitioneRs, It is contended that the petitioners' application for amendment of the plaint is mala fide. The application was moved on 26-3-2010 when all the avenues for leading evidence were closed for the petitioners and they had miserably failed to prove their case. The application is only a device to produce evidence through the back door as the petitioners' right to lead evidence has been closed and even this Court in C.R. No,2608 of 2009 has denied them the opportunity to lead evidence. It is settled law that amendments in pleadings cannot be allowed at such a late stage in the proceedings of a suit. Moreover, what has not been achieved directly cannot be allowed to be achieved indirectly. The sought for amendments would entirely change the nature of the suit. Both pleas are inconsistent, hence, self destructive and should not be allowed. The prayer clause does not allow recovery of damages. Reliance is placed on the judgments reported as Ijaz Mdhmood and others v. Manzoor Hussain and others (1988 SCMR 34), Dr. Hasan Mahfuz Jalisi v. Khawaja Moinuddin and 2 others (PLD 2006 Karachi 98), Atlantic Steamer's Supply Company v. M.V. TITISEE and others (PLD 1993 SC 88), Muhammad Munir v. Shahida Saleem (2009 YLR 483), Abdul Hameed Dogar v. Federation of Pakistan and others (2010 SCMR 312) and Nazir Ahmad and 8 others v.
Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322).
4. I have gone through the record with the assistance of the learned counsel for the parties and have also heard them at length.
5. The petitioners' evidence was closed on 30-7-2009 and ever since then they have been in the process of getting that decision reversed but to-date they have been unsuccessful. It has been established on the record that after the evidence of the respondents had been concluded and the suit was set down for final arguments the petitioners kept on obtaining adjournments and finally filed the application in question for amendment of the plaint. I have gone through the said application. It has been drafted in a very rudimentary style. No reason whatsoever has been set out as to the need for making the amendment in the plaint nor has any explanation been given for the belated filing of the application.
6. A feeble attempt has been made in ground (f) of the petition to explain the reason for seeking the amendment in the plaint. The relevant portions of the said ground are reproduced hereunder for ease of reference: "(f) That during pendency of suit the petitioners came to know that plaintiffs have mentioned in the plaint that defendants in violation of the terms of agreement and for the purpose of creating further complications through transfer the suit property through Mutation No,119 in favour of their father and caused lot of mental torture and loss of Rs,1,45,50,000 could not have been mentioned in the original point (sic)."
7. From a perusal of the application for amendment in the plaint no explanation becomes apparent for not taking of the said plea at the initial stages of the trial. Indeed, even the ground reproduced hereinabove does not show why the said plea was not taken at the initial stage. The plea of suffering mental torture by the petitioners' father as a result of the mutation in question is a fact which should have been in the contemplation of the petitioners at the time they filed the suit.
The application has been made at a stage when evidence of both parties has been recorded and the case has been repeatedly adjourned for final arguments at the request of the petitioneRs,
8. The authorities quoted at the bar by the learned counsel for the petitioners do not advance their case.
9. The petitioners have failed to give an explanation for not taking up the pleas sought to be introduced through the proposed amendments at the initial stage of trial. It would, therefore, seem that the application is just a device to lead evidence through the back door as contended by the learned counsel for the respondents. The petitioners can, therefore, not be permitted to achieve indirectly which could be achieved directly.
10. The learned counsel for the respondents has placed heavy reliance on Ijaz Mahmood's case (supra) wherein the honourable Supreme Court whilst declining to interfere in the matter observed as under:-- " ..The application (for amendment had been made) at a stage when the evidence of both parties had been recorded and the case had been fixed for arguments. The amendment, if allowed, would have entailed further recording of evidence. No explanation has been offered by the petitioners for not taking up the said plea at the initial stages of the trial. In the circumstances we are not prepared to interfere with the order of the trial Court."
11, Whilst respectfully relying on Ijaz Mahmood's case (supra) I find that there is force in the contentions of the learned counsel for the respondents and hold that the learned Courts below have passed the impugned orders in accordance with law. The learned counsel for the petitioners has been unable to point out any illegality or material irregularity in the same or that the learned Courts below have failed to exercise their jurisdiction vested in them.
12. This petition is accordingly dismissed with no orders as to costs.