' SYED SAJJAD HASSAN SHAH, J.---This revision petition is directed against the judgment and order dated 22-9-2010 passed by the learned Civil Judge-VI Kohat, whereby, the application of the respondent for the amendment of the plaint was accepted and amendment was allowed.
2. Briefly stated facts of the case are that Mst.Saeeda Bano the plaintiff/respondent (hereinafter called the respondent) instituted a suit against the defendants/petitioners (hereinafter called the petitioners), seeking the recovery of Rs,10,50,000 from the petitioners. The respondent, in her plaint averred that petitioner No,1 is the brother-in-law, whereas, the petitioner No,2, the real sister of the respondent, a sum of Rs,300,000 obtained as loan from Small Business Corporation Limited, Kohat by petitioner No,1, the respondent stood surety/guarantor for the payment of said loan. He further averred that a sum of Rs,1,50,000 was obtained as loan from I.D.B.P. Peshawar by the petitioner No,1 and the respondent No,2, as mentioned above, closely related inter se, therefore, the respondent No,1 to collect the amount mortgaged her Plot No, 33, Sector-8, measuring 11.8 marla, situated in K.D.A. Kohat, as security for payment of said loan with the bank ibid. ' He further asserted that for the payment of said loan, a notice was received by the respondent as the petitioners have failed to return the loan to either of the said loaning company. For the above mentioned loan received by the petitioner No,1, the respondent stood surety in presence of petitioner No,2 as it was promised by the petitioner No,1, that he would return the loan as earlier as possible. He further averred that after the passage of a sufficient long time, no amount of loan has been returned, the respondent has arranged the payment of loan of Rs,10,50,000 by selling her ornaments and a plot, as the respondent received the notice dated 24-12-2004, for the recovery of loan.
' In this background, the respondent moved an application for the amendment of the plaint to the effect that, she may be allowed to seek the relief against the petitioner in the plaint for providing a plot of similar -nature in lieu of Plot No,33 ibid, as promised by the petitioner No,1, presently the market value of said plot is Rs,20,00,000. The respondent is legally entitled to have sought the recovery of Rs,20,00,000 market value of plot and Rs,20,00,000 on account of damages, besides, Rs,5,00,000 as damages on account of mental torture.'
' The application was resisted by filing replication by the petitioners, however, the learned trial Court, vide impugned order granted the application and permitted the filing of the amended plaint.
3. The learned counsel appearing on behalf of the petitioners contended that the proposed amendment would change the complexion of suit and also the cause of action, whereupon the suit has been filed. Moreso, the amendment application made with mala fide intention, just to delay the proceeding in the suit. He further argued that the learned trial Court, while, allowing the application did not have considered the direction of this Court in order of remand dated 19-4-2010, wherein, four months time specified for deciding the suit, in case the impugned order would have not been set aside, it will consume much more time than fixed by this Court. The learned counsel while concluding his arguments requested that he wanted to produce the copy of the amended plaint on the file of instant petition, therefore, the matter may be adjourned. In support of his arguments learned counsel placed reliance upon 2001 SCM R 133, 2004. CLC 333 and 1992 CLC 143.
4. Arguments of the learned counsel for the petitioners considered and record carefully perused.
5. While, resisting the amendment as was permitted by learned Court below, the learned counsel vehemently contended that the amendment is mala fide an to cause delay in disposal of the suit pending in the trial Court and disposal of the same was to be made within the period of four months as per direction of this Court.
6. The impugned order, in the light of above mentioned reasons cannot be recalled as there is no order of prohibition for the amendment of the plaint passed by this Court, therefore, on this ground no interference can be made in the impugned order. The question of mala tide is not ascertainable from the averments made in the plaint, as at the moment except the plaint there is no other document available on the record, whereby, the question of mala fide on the part of the respondent can be entertained. However, the respondent has already prayed for the recovery of amount, which she has paid against the loan, which was obtained by the petitioner No,1 and it is asserted by the respondent in ' tier plaint that in presence of respondent No,2, it was promised by respondent No,1 that he would arrange the transfer of similar plot, as was mortgaged by the respondent with the bank as security.
The payment of amount of loan made by the respondent, after having received the notice of recovery. It is permissible under the law to seek the recovery of the same as well as to enforce the promise so made by the petitioner No,1, the relief sought to be introduced by way of proposed amendment would not change the present form of the suit or effect the cause of action, rather the proposed amendment emanates from the pleadings of the respondent, as being related to the averments already made in the plaint and the part and parcel of same cause of action.
7. The cause of action not based upon a single fact or circumstance, but the bundle of facts which constitute the cause of E action. Since the cause of action has not been defined in the C.P.C., however, in this connection the recourse can have of the dictionary meaning. In this connection reference of Law Dictionary Edition 1986 by Dr. A.A Biswas made, wherein, "Cause" has been defined in the following words:-- "Cause" Cause is something that occasions or effects a result; a ground of legal action, case; a matter or question to be decided. 'Cause' means a suit or action; motive or reason; that which produces any effect.
' Cause is any suit, action, matter or other. Similar proceeding competently brought before and litigated in a particular court.
8. The cause of action while placing reliance on the case law from the Indian jurisdiction has been explained as follows:-- "Cause of Action" 'Cause of action' means every fact which is material to be proved to entitle the plaintiff to succeed---every fact which the defendant would have a right to traverse. Cooke v. Gill, 1873 LT 8 CP 107. The expression means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court. AIR 1949 PC 78 (86); W.W.
Joshi v. State of Bombay, AIR 1959 Bom 363; 61 Born LR 829.
9. Likewise, the 'cause of action' being manifold meanings defined in the light of different legal aspects in "Law Lexicon with Legal Maxims", reproduced as follows:-- "Cause of 'Action" --- The meaning of the expression "cause of action" is concluded by the Privy Council in Muhammad Khalil v. Mahbub Ali, A.I.R. 1949 P.C. 78, where this expression was examined in connection with its meaning under Order II, Rule 2 C.P.C., after an elaborate discussion of the authorities prevailing in India and England, their Lordships summed up the principles in para. 61 of the judgment as follows:-- "(61) ..........
(1) The correct test in cases falling under Order II, Rule 2, is whether the claim in the new suit is the fact founded upon a cause of action distinct from that which was the foundation of the former suit.--- Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 M.I.A. 551 : 2 Sar. 259 (P.C.).
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.---Read v. Brown, (1889) 22 Q. B. D. 128 : 58 L.
J. Q. B.
120.
(3) If the evidence to support the two claims is different, then the causes of action are also different.--Brunsden v. Humphrey, (1884) 14 Q. B. D. 141 : 54 L. J. Q. B.
476.
(4) The cause of action in the two suits may be considered to be the same if in substance they are incidental.- Brunsden v: Humphrey, supra.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It referes to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Mst.
Chandkour v. Partap Singh, (1887) 15 I. A. 156 : I.L.R. 16 Cal. 98 (P.C.) This observation was made by Lord Watson in a case under section 43 of the Act of 1882 (corresponding to Order II, rule 2) where plaintiff made various claims in the same suit.---Sudarsan Swain v. Jagannath Rout, AIR 1974 Orissa 190 at pp. 191-192.
' The expression, cause of action, means bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in a suit. If refers entirely to the grounds set forth in the plaint as cause of action i.e, the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.---Salik Rain v. Ram Lakhan, 1972 (42) All. W.R. 883 at p.885; see also L.N.
Veeri Chettiar v. Sales-tax Officer, Bombay, AIR 1971 Mad, 155 at p.
160.
' The expression "cause of action" consists of every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse, and that the cause of action arises "in part" within the jurisdiction of a court if any fact material for the plaintiff to prove such as the payment of money due takes place therein.---G.W. Wilson v. Messrs. Volkart Brothers, 27 I.C. 129 at pp. 129-30: 8 SLR 107.
"The words 'cause of action' have all along been held to mean" every fact which it is material to be proved to entitle the plaintiff to succeed; every fact which the defendant would have a right to traverse and have no relation whatever to the defence, but refer entirely to the ground set forth in the plaint as the cause of action.--Cook v. Gill, (1873) L.R. 8 C.P. 107; Shankar v. Daya Shankar, (1887)
L.R. 15 I.A. 66; I.L.R. 15 Ca1.422 (P.C.); 5 Sar. 107; 12 Ind. Jur. 132: R. And J. 100; Chandkour v. Pratab Singh, (1888) L.R. 15 I.A. 156: I.L.R. 16 Cal 98 (P.C.): 5 Sar. 243 : 12 Ind. Jur.
331.
' A "cause of action" may consist of a single fact or of an assemblage of facts which it is essential for the plaintiff to prove in order to support his claim against the defendant about the subject matter in dispute where the plaintiff has no immediate title to the property in dispute, he cannot sustain an action for ejectment. A person, who is a. Mere sanyasi of the math and who has not been nominated as the successor by the last mahant or elected by the mahants, the members of the sect and the raises and placed upon the gaddi after due performance of rituals, is not competent to maintain a suit for ejectment and does not possess the necessary cause of action.-- -Parmarath Gir v. Ram Sarup Singh, 1932 A.L.J. 303 at p. 305 : A.I.R. 1932 All. 487 at p. 488: 138 I.C.
269.
10. More specifically the import of the word 'cause of action' means that the bundle of facts pleaded by plaintiff, if traversed by the defendant, the plaintiff in order to obtain the decree in his favour was bound to prove all those facts. However, the plaintiff would have succeeded to prove even a single fact out of bundle of facts averred in the plaint, lie would be declared as entitled for the decree to that extent.
11. It is within the rights of the, plaintiff/respondent to apply for seeking the leave of court to amend her plaint, to introduce the proposed amendment well in accordance with law and in no way infringed any provision of law. Moreso, not derogatory to the plea already taken up in the plaint, neither it would change the complexion of suit nor the cause of action as stated above, the same is part and parcel of the cause of action constituted on the same material pleaded by the plaintiff. It would not cause prejudice to the defendants/petitioners rather it is essentially required to effectively and conclusively decide the controversy between the parties once forever.
12. The learned counsel for 'the petitioners in support of his argument placed reliance upon a case titled Ghulam Haider v. Muhammad Ayub, reported as 2001 SCM R 133, wherein, the august Supreme Court laid down the rule in different circumstances, wherein, the suit was decided, appeal filed against the judgment and decree of the trial court, wherein, the application under Order VI, rule 17 read with section 151 C.P.C. Made by the petitioner, same was rejected, however, the amendment as sought to introduce by present respondent has not been discussed nor refused. Similarly, another case titled M.V. Kaptan Yousuf Kalkavan v. Semco Salvage (Pvt.) Ltd., reported as 1992 CLC 143, also proceeded on different facts and circumstances, which is also not applicable to the facts of the instant case. He has also referred to a case titled Muhammad Yousaf Khan v. Muhammad Aslam and another, reported as 2004 CLC 333. In this case, the amendment was allowed on different facts and circumstances of the case and those are also not applicable to the instant case.
13. The august Supreme Court while deciding the question of amendment in pleadings extensively discussed the true import and necessity of introducing amendment in pleadings. Reliance placed upon a case titled Mst. Ghulam Bibi and others v. Sarsa Khan and others reported as PLD 1985 SC
345. The said judgment was delivered by four honourable Judges, the leave was granted regarding the amendments in pleadings, thus, the amendment was allowed and also considered the repercussion of Order II, rule 2 C.P.C. That:- "every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of cause of action"; further that where the plaintiff omits to sue in respect 'of, or intentionally relinquishes, any portion of his claim, he shallnot afterwards sue in respect of the portion so omitted or relinquished. Similarly, it provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but he omits, except, with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted, therefore, it is held in this judgment, if a genuine amendment which is permissible and should otherwise be liberally allowed in view of the principles highlighted in the foregoing discussion with reference to the case law, is denied the provisions contained in Order II, rule 2 CPC would create enormous difficulties for the applicant".
"The foregoing interpretation is also in accord with the mandatory language used in Rule 17 to the effect that "all such amendments shall be made as may be necessary the purpose of determining the real questions in controversy..." Therefore, once the court decides that the amendment is necessary for the said purpose of determining the real question, the court is required by law to not only to allow an application for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once . The court comes to a finding that the amendment- is necessary for the purpose of determining the real question, it becomes the duty of the court to permit the amendment.
"What has been stated above is, . However, subject to a very important condition that the nature of the suit insofar as its cause of action is concerned is not changed by the amendment whether it falls under the first part of Rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They Would have been: firstly, the change in the heading signifying the suit being for specific performance etc. Instead of declaration etc. And secondly, there was to be a similar .Change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualizes is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualizes the award of adequate compensation : in that, the amendment has to be allowed "in such manner and on such terms as may be just".
"On the general question of technicalities of the civil procedure when they are pressed into service' so as to thwart rights and remedies, it would be better here to re-produce the thoughts of an eminent Judge of this court. He observed:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The idea must always be a system that gives to every person what is his".
14. The learned trial court was fully empowered to grant leave to amend the plaint as the proposed amendment sought at an early stage and the petitioners can meet and rebut the claim by filing written statement and evidence in proof thereof, no prejudice would be caused to the petitioner, if the proposed amendment introduced in plaint.
14A. In view of the above discussion, the order of amendment being lawful and not suffering from any legal flaw, therefore, maintained.
15. This petition is, hereby, dismissed as without being any substance.