' MEHMOOD MAQBOOL BAJWA, J.--- Legality and validity of order dated 22-1-2011 has been called in question at the instance of the petitioner who instituted suit for specific performance of executory contract of sale whereby an application made by him under Order VI, Rule 17 of The Code of Civil Procedure, 1908 was dismissed by the learned trial Court.
2. Necessary facts resulting in filing of present revision petition are that present petitioner instituted suit for specific performance of executory contract of sale dated 14-6-2005 against respondents Nos.1 and 2 asserting that both the respondents agreed to alienate their holding situated in Mauza Kamoke, District Gujranwala for a consideration of Rs,42,90,000/- and 900 bags of rice were given to the said respondents as earnest money on 30-5-2005 and 4-6-2005 respectively, with undertaking to pay remaining amount of Rs,15,90,000/- within a period of two years. Alleged denial to perform contract by said respondents prompted the petitioner to institute suit for specific performance. Submitting written statements, the respondents Nos.1 and 2 disclosed the factum of alienation of portion of property in favour of respondent No,3, who was arrayed as defendant in the suit in view of the submission of application under Order. I, Rule 10 of The Code of Civil Procedure, 1908. An application under Order VI, Rule 17 of The Code of Civil Procedure, 1908 was made at the instance of the petitioner on 30-7-2010 seeking amendment in Paragraphs 4 and 7 of the plaint besides insertion of relief. In the prayer clause mentioned in explicit form in Paragraph No,2 of the application, which, after calling written reply was dismissed by the learned trial Court prompting the petitioner to invoke revisional jurisdiction of this Court.
3. Heard.
' The learned counsel for the petitioner maintained that after submitting written statement at the instance of respondents Nos.1 and 2, it revealed that portion of holding was alienated in favour of respondent No,3 and as such the petitioner sought amendment in the plaint in order to question legality of the transaction in favour of respondent No,3. Maintained that the opinion formulated by the learned trial Court that the proposed amendment, if allowed, will change the nature and complexion of the suit is based on erroneous presumption.
' Repelling argument, learned counsel for the respondents maintained that application was made at belated stage which by itself was sufficient to non-suit the petitioner and as such no exception can be taken to the order impugned. Reliance was placed upon "Mst. IMAM HUSSAIN v. SHER ALI SHAH and others" (1994 SCM R 2293) Making reference to section 52 of The Transfer of Property Act and section 27(b) of The Specific Relief Act, it was maintained that the petitioner was neither competent nor authorized to seek declaration assailing legality of transfer in question, witnessed by mutation in favour of Mian Muhammad Aziz, respondent No,3. Submitted that the petitioner being plaintiff in the suit for specific performance was obliged to suggest prior existence of contract in his favour as held in "Mst. SURAYA BEGUM and others v. Mst. SUBAN BEGUM and others"
(1992 SCM R 652) but there is nothing to substantiate his contention.
4. After going through the celebrated judgments of the Hon'ble Apex Court particularly "Mst.
GHULAM NABI AND OTHERS v. SARSA KHAN AND OTHERS" (PLD 1985. SC 345) on the moot point following points can be formulated which are to be taken into consideration while allowing or declining application for amendment of the pleadings.
(a) Delay alone in applying for amendment or expiry of period of limitation or increase ill court-fee and change of jurisdiction, would not be a ground for refusing amendment in the plaint. .(b) Expression "at any stage of proceedings" used in Order VI, Rule 17, of The Code of Civil Procedure, 1908 is of significant and the expression "proceeding" is to be interpreted in liberal manner.
(c) The provisions of Order VI, Rule 17 of The Code of Civil Procedure, 1908 can be classified into two parts. First part gives discretion to the Court to allow or decline any amendment.
' However, use of expression "all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy" in the later part is mandatory in nature requiring the Court to allow amendment if it reaches to the conclusion that amendment is necessary for the purpose of determining the real question in controversy.
(d) Mala fide on the part of the plaintiff would be a ground to decline application.
(e) Any proposed amendment which will change the nature and complexion of the suit would not be allowed.
(t) Power of Court to allow amendment is meant to advance justice and to preserve rights of litigants and cannot be used to entrap them so as to frustrate purpose of law and justice.
(g) Liberal view has to be taken for allowing amendment of the plaint and other pleadings.
(h) Introduction of a new or different element, not constituting a different cause of action or a new suit, cannot be a ground to decline amendment.
(i) Inconvenience or embarrassm ent to the adversary by itself would not be a sufficient ground to decline amendment provided it is necessary for determining the real question in controversy.
(j) Refusal to allow genuine amendment would create difficulty for the applicant in view of bar contained in Order II, Rule (2) of The Code of Civil Procedure, 1908.
(k) Strict view is not required to be taken on technical plane of pleadings without regard to substance which may result in defeating ends of justice.
5. Keeping in view the above yardstick now case of the petitioner is to be examined and evaluated.
Perusal of the contents of application made under Order VI, Rule 17 of The Code of Civil Procedure, 1908 suggests that the petitioner while making reference to the transfer in favour of the respondent No,3 wanted to question legality of said transaction maintaining that transaction witnessed by Mutation No,38444 dated 30-5-2007 is illegal, without consideration and as such in operative against, the rights of the petitioner being plaintiff. Admittedly, respondent No,3 in whose favour portion of property was alienated was made party in the suit and as such the proposed amendment, referred to in application to be inserted in Paragraph Nos.4 and 7 of the plaint and in the prayer clause of the plaint by no stretch of imagination can be said to change the nature and complexion of the suit. Admittedly, the relief sought for at the instance of the petitioner being plaintiff in the suit regarding specific performance of the executory contract of sale cannot be granted, unless the petitioner assails the transaction of sale in favour of respondent No,3. In view of the attending circumstances the proposed amendment questioning the legality of transaction in favour of the respondent No,3 was essential for determining the real question in controversy between the parties and as such falling under second part of Rule 17 of Order VI of The Code of Civil Procedure, 1908 was required to be allowed being mandatory in nature. If the proposed amendment is declined, provision of Order II, rule (2) of The Code of Civil Procedure, 1908 will debar the petitioner later on to question the legality of transaction in favour of respondent No,3. The relief questioning the genuineness of transaction is interconnected with the relief of specific performance and as such it cannot be said by any stretch of imagination that the proposed amendment, if allowed, will change the nature and complexion of the original suit. Though the learned trial Court also non-suited the petitioner on the ground of delay but nevertheless this fact by itself was not sufficient to non-suit the petitioner as the proposed amendment was necessary for determining the real question in controversy between the parties.
6. I have gone through the rule of law enunciated in Mst. IMAM HUSSAIN v. SHER ALI SHAH and others (1994 SCM R-2293) relied upon by the learned counsel for the respondents in which one of the ground to non-suit the plaintiff was belated attempt to seek amendment of the plaint but nevertheless the delay in filing the application for amendment was not the sole ground to non suit the plaintiff in the Report under reference. Perusal of the facts of Report suggests that it was held that proposed amendment will change the complexion of the suit. In view of the matter, the delay in making application was considered as additional ground to decline application and the Hon'ble.
Supreme. Court of Pakistan while endorsing order recorded by this Court in Civil Revision declined to grant leave.
7. Argument canvassed at the instance of the respondents on the strength of rule of law enunciated in the Report in "Mst. SURAYA BEGUM and others v. Mst. SUBAN BEGUM and others" (1992 SCMR652) cannot advance plea of the respondents at this stage because question for consideration is whether the order impugned before this Court declining amendment in the plaint was justified or not. Question of discharging onus of issue, referred to in section 27(b) of The Specific Relief Act would be relevant and important while deciding the said question at the time of conclusion of trial and got no relevance while deciding moot point.
8. Revision al jurisdiction can be exercised in case of Illegal-assumption, Non-assumption or exercise of jurisdiction illegally or with material irregularity.
9. In view of the above state of facts and law, there can be no cavil to the proposition that while declining application for amendment of the B plant, the learned trial Court failed to exercise jurisdiction vested in it calling for interference by this Court.
10. Pursuant to above discussion, while allowing revision petition, order impugn before this Court is hereby set aside resulting in C acceptance of the application under Order VI, Rule 17 of the Code of Civil Procedure, 1908.