MUHAMMAD AMEER BHATTI, J. - The petitioner filed a suit for possession through specific performance on the basis of an agreement to sell dated 05.04.1997 about property in dispute i.e. Shops for consideration of Rs. 11,50,000/- and was paid Rs. 11,00,000/- as earnest money. During the pendency of the suit on 10.04.2009, respondent No. 3 filed an application under Order I, Rule 10, C.P.C, for his impleadment as defendant in the suit on the ground that he had purchased this property, therefore, he be impleaded as defendant being a necessary party. The learned Trial Court vide order dated 10.07.2009, after obtaining reply from the petitioner, allowed the application and directed the petitioner to file the amended plaint by arraying respondent No. 3 as defendant. On 20.07.2009, the amended plaint was filed and respondent No. 3 filed a written statement on -28.07.2009. 'From the divergent pleadings of the parties, the learned Trial Court framed the necessary issues. However, the present petitioner filed an application under Order VI, Rule 17, C.P.C.
For amendment of the plaint and Order. I, Rule 10, C.P.C. For impleadment of the vendee of the property. The respondent No. 3 filed the reply of this application wherein he controverted the facts of the case and raised the objection that the application may be dismissed, as it could not be allowed at this stage for it would change the complexion of the suit. The learned Trial Court vide impugned order dated 03.04.2010, dismissed the application of the petitioner on the ground that if this amendment is allowed, it will change the complexion of the suit. Aggrieved of the order of the learned Trial Court dated 03.04.2010, the petitioner filed a revision petition before the learned Revisional Court which was dismissed vide impugned order dated 25. 08.2010 on the only ground of delay in filing the application, hence this writ petition.
2. The contention of the learned counsel for the petitioner is that the learned Trial Court has committed material illegality and irregularity by holding that the amendment sought by the petitioner amounted to change the complexion of the suit. Hence the order of the learned Trial Court is not tenable in the eye of law. Further contends that the learned Revisional Court altogether took varied stance while holding that the petitioner had filed this application after a long time, therefore, the delay in filing the application is fatal to the right of amendment and dismissed the revision petition of the petitioner. The order of the learned Revisional Court is contrary to the law laid down by the Hon'ble Supreme Court wherein it was held that the delay alone could not be "considered sufficient cause to refuse the amendment in the pleadings. Reliance is placed on Mst.
Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345), Javaid Iqbal v. Abdul Aziz and another (PLD 2006 S.C. 66), Lahore Development Authority and others v. Sultan Ahmad and another (2007 SCM R 1682). Further contends that in the written statement,-respondent No. 3 took the stand that he purchased the disputed property being a bona fide purchaser, therefore, question of lis pendense could not affect his right and the learned Trial Court has framed the issue in this regard whereas the petitioner has not been allowed to amend his plaint, the petitioner would not be able to bring on record any evidence, as it is settled law that evidence recorded beyond the pleadings could not be read in the case. Therefore, the petitioner will suffer an irreparable loss, if this amendment is not allowed to incorporate in the plaint. Further contends that by incorporating the proposed amendment, no change in cause of action will ensue and unless a cause of Action is not changed, the complexion of the suit could not be presumed to have been changed, therefore, both the Courts below have committed material illegality arid irregularity while dismissing the application and revision of the petitioner, whereby they refused to allow the petitioner to amend his plaint. Further contends that the orders of both the Courts below are erroneous and nullity in the eye of law and the same may be declared as such, hence this Constitution petition.
3. Conversely, the learned counsel for the respondents contends that both the Courts below rightly held that if the proposed amendment had been allowed, it would have change the complexion of the suit, therefore, it was not the time for introduction of new cause of action. He has relied on Mst.
Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345), Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed NauShahi (2010 SCM R 11), Memoona Noureen v. Vice- Chancellor, Fatima Jinnah Women University, Rawalpindi (2011 CLC 230), Al- Rehman Associates through Special Power-of-Attorney v. Province of Sindh through Secretary Land Utilization Department and 2 others (2010 CLC 1734). Further contends that the petitioner has not approached this ' Court with clean hands, therefore, he has no right to seek the extraordinary discretionary relief from this Court.
4. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
5. The petitioner's suit for specific performance on the basis of an agreement to sell about the same property is already pending in the Court of law and during the pendency of this suit by filing application under Order I, Rule 10, C.P.C., the respondent No. 3 introduced himself as bona fide purchaser of the suit land, therefore, the necessity of proposed amendment had arisen. It has been observed that the amendment proposed by the petitioner was about those facts which cropped up during the pendency of the suit or before filing the suit but were not in the knowledge of the petitioner/plaintiff at the time of filing of the suit. The petitioner has not made any prayer for the deletion of any part of his plaint including the prayer and cause of action. He just made a prayer for insertion of some further facts, which came to his knowledge after inclusion of respondent No. 3 in the suit, therefore, these amendments could not affect the original cause of action of the petitioner, thus leaving the complexion of the suit intact, rather assertion/insertion of these facts will add the prayer clause for the setting aside the sale-deed, through which respondent No. 3 had emerged as owner of the property in dispute. It is settled law that only contradictory pleas to the original in the pleadings are not allowed to be introduced whereas complementary, additional and alternative pleas are permissible to be allowed at any stage. In the light of the settled law, the amendment sought by the petitioner was meticulously judged and it is found that the amendment required to be introduced through the application were not inconsistent with the yardstick/parameter prescribed by the Hon'ble Supreme Court. Therefore, it is held that any deletion of some part of plaint and incorporation of additional facts and prayer in the pleadings without changing the nature of the suit are in line and the basis of the suit cannot be dubbed a change of cause of action that alter the nature of the suit.
6. So far as the inclusion of the vendor of respondent No. 3 as defendant in the suit is concerned, it is observed that respondent No. 3 purchased the suit property during the pendency of the suit vide a registered sale-deed dated 17.12.2008 and his vendor also became owner of the disputed shops through registered sale-deed dated 10.10.1997. Moreover, respondent No. 3 put himself the contender of the suit to protect his sale-deed, therefore, it is also appropriate that all the concerned be before the Court for prosecution of their rights, so that no one should be condemned unheard and an effectual adjudication follows.
7. In view of the above, the orders passed by both the Courts below are declared to be illegal, without lawful authority and contrary to the law laid down by the Hon'ble Supreme Court. Consequently, the application of the petitioner for amendment of plaint and impleadment of the 'defendant is allowed. The petitioner is directed to file the amended plaint after incorporating the proposed amendment and including the newly-added defendants in the plaint and respondents would be at liberty to file their (amended) written and the statement learned Trial Court, thereafter, will- frame the fresh issues according to the emerging pleadings of the parties and after providing the opportunity to lead the evidence, decide the matter strictly in accordance with law.
8. This petition stands accepted in the foregoing terms.