Challenge in this civil revision is to the judgment and decree dated 31.01.2005 passed by the learned Addl. District Judge, Sahiwal who affirmed the judgment and decree dated 19.12.2000 whereby the petitioners' suit for declaration with permanent injunction was dismissed.
2. Briefly the facts of the case are that Syed Ijaz Husssain (Respondent No, 3) was allotted a land measuring 100 Kanals 18 Marlas (the "suit land") under the Islamabad Oustees Scheme. Being an allottee, Syed Ijaz Hussain, on 31.7.1973 orally agreed to sell the suit land to the tenants namely Nazar Din, Khushi Muhamad, Sakhi Muhammad and Fazal Din (hereinafter called "the petitioners") for a consideration of Rs, 72500/- and after having received Rs, 60,000/- handed over the possession of the suit land to the petitioners. Subsequently, on 21.01.1974 Syed ljaz Hussain/Respondent No, 3 executed agreement (Ex. P8) and confirmed the oral agreement to sell.
On the basis of agreement dated 21.01.1974 (Ex. P8) the petitioners on 22.1.1974 instituted a suit for permanent injunction against Syed Ijaz Hussain (Respondent No, 3) who appeared before the learned trial Court and got recorded his conceding statement (EX.P4) that the suit be decreed as prayed for and resultantly the suit was decreed on 31.1.1974 (Ex.P5) whereby Syed Ijaz Hussain was restrained to interfere in the possession of the petitioners; to create hindrance in the execution of sale deed qua the suit land in favour of the petitioners; and, to sell the suit land to any third party.
After a lapse of almost 10 years, Syed. Ijaz Hussain (Respondent No, 3) orally sold the suit land to Ashraf Ali (Respondent No, 1) and Akbar Ali (Respondent No, 2) for a consideration of Rs, 250,000/- and thereafter moved an application before the District Collector, District Sahiwal under Section 19 of the Colonization of Government Lands Act (Punjab), 1912 (hereinafter called the Act, 1912") seeking approval for the transfer of rights in respect of the suit land. The District Collector after soliciting the report (Ex.P2) granted approval vide order dated 21.3.1984 (Ex.P1) and in pursuance thereof Mutation No, 281 (Ex.P3) was attested on 9.9.1985 in favour of Respondent No, 1 (Ashraf Ali) and Respondent No, 2 (Akbar Ali). Consequent upon attestation of Mutation No, 281 (Ex.P3), the petitioners moved an application under Order XXI Rule 32, CPC for the execution of decree dated 31.1.1974 (Ex.P5). During the pendency of execution petition, the petitioners on 30.7.1989 instituted first suit for declaration against the present respondents and prayed that order dated 21.3.1984 (Ex.P1) passed by the District Collector and Mutation No, 281 dated 9.9.1985 (Ex.P3) be declared illegal. The respondents moved an application under Order VII, Rule 11, CPC for rejection of plaint on the plea that all the questions raised in the suit were under consideration in the execution proceedings filed by the petitioners for the execution of decree dated 31.1.1974 (Ex.P5). The learned Civil Judge rejected the plaint under Order VII, Rule 11, CPC vide order dated 9.12.1989 (Ex.D8).
Feeling aggrieved, the petitioners moved an appeal before the learned Addl. District Judge but the same was dismissed vide judgment and decree dated 28.9.1992 (Ex.D-9). Although, it is not available on record, yet learned counsel for the petitioners submits that consequent upon dismissal of appeal the petitioners also withdrew application moved under Order XXI Rule 32, CPC for the execution of decree dated 31.1.1974 (Ex.P5). However, on 29.9.1992, the petitioners instituted a second suit for declaration and permanent injunction seeking the same relief which was prayed for in the first suit for declaration. In response to summons, the Respondents No, 1 and 2 appeared before the learned trial Court and submitted a contesting written statement. The suit to the extent of Respondent No, 3 (Syed Ijaz Hussain) was dismissed vide order dated 6.5.1993 due to non- deposit of process fee.
3. The learned trial Court on 5.7.1995 out of the divergent pleadings of the parties reduced the controversy into following issues:--
1. Whether Plaintiff Nos, 1 to 3 and Fazal Din predecessor-in--interest of the plaintiff Nos, 4 to 9 entered into sale agreement for the consideration of Rs, 72500/- with Defendant No, 3? OPP.
2. Whether the Defendant No, 3 is restrained by agreement dated 31.07.1973 and consent decree from alienating of the land in dispute to any other? OPP
3. Whether the District Collector gave permission for alienation of the land in dispute without hearing and the consent of parties on 21.03.1984 and Mutation No, 281 dated 09-09.1985, in favour of the Defendant Nos, 1 and 2 is against law and facts and is inoperative on the rights of the plaintiffs?
OPP
4. Whether the parties are entitled to the declaration that the Defendants No, 1 and 2 are not entitled to purchase the land in dispute on account of the facts averred in the plaint and the Defendant No, 3 is bound to get alienation of the land in dispute in favour of the plaintiffs? OPP
5. Whether the plaintiffs are entitled to the decree as prayed for? OPP
6. Whether the suit can not proceed due to non-joinder of Province of Punjab, if so its effect? OPD
7. Whether the suit is barred by Section 47 of CPC, Principle of Res judicata, Section 36 of the Colonization of the Government Land Act and the plaint of the suit is liable to be rejected under Order VII, Rule 11, CPC? OPD
8. Whether the plaintiffs have locus standi and cause of action to file this suit? OPP
9. Whether suit is within time?
10.Whether the suit is barred by Order II Rule 2, CPC? OPD 11.Whether the decree dated 31.01.1974 is against law and without legal authority, if so its legal impact? OPD 12.Whether the impugned agreement is without lawful authority and is liable to be cancelled?
OPD 13.Whether the suit of the plaintiff is baseless mala-fide and the defendants are entitled to recover special costs U/S 35- A of CPC? OPD 14.Relief
4. After framing of issues, the Province of Punjab was impleaded as Defendant No, 4 in the suit vide order dated 1.10.1996. Parties to the suit produced oral as well as documentary evidence in support of their respective claims. The petitioner/Sakhi Muhammad himself appeared as PW-1 and produced Hashmat Ali (PW2) and Rulia (PW-3). The petitioners in their documentary evidence tendered copy of order dated 21.3.1984 passed by the District Collector (Ex.P1), report dated 19.3.1984 for transferring the suit land (Ex.P2), copy of Mutation No, 281 (Ex.P-3), copy of statement of Syed Ijaz Hussain dated 22.1.1974 (Ex.P4), copy of order dated 31.1.1974(Ex.P5), copy of Jamabandi Khata No, 142 Khatuni No, 411-407 (Ex.P-6), copy of Khasra Girdawari Kharif 1984-85(Ex.P-7) and copy of sale agreement on behalf of Ijaz Hussain (Ex.P8). Conversely, Ashraf Ali, respondent himself appeared as DW-1 and in documentary evidence he tendered a copy of Jamabandi for the year 1983-84 (Ex.D- 1), copy of Jamabandi for the year 1986-87 (Ex.D2), copy of Jamabandi for the year 1991-92 (Ex.D-3), Jamabandi for the year 1995-96 (Ex.D4), copy of Mutation No, 281 (Ex,D5), copy of Khasra Girdawari (Ex.D6), copy of plaint titled as Mst. Haliman Bibi vs. Syed Ijaz Hussain (Ex.D7), copy of order dated 9.12.1989 (Ex.D8) and copy of judgment dated 28.9.1992 passed by the learned Addl. District Judge (Ex.D9).
5. After recording evidence the learned trial Court vide judgment and decree dated 19.12.2000 dismissed the suit. Being dissatisfied, the petitioners moved an appeal before the learned Addl.
District Judge. During the pendency of appeal the petitioners moved an application under Order VI Rule 17, CPC for amendment in the plaint,so as to add the prayer for specific performance of agreement. The learned Addl. District Judge after getting reply dismissed the application vide order dated 29.1.2005. Thereafter, the learned Addl. District Judge vide judgment and decree dated 31.1.2005 also dismissed the appeal. Hence this civil revision.
6. Learned counsel for the petitioners submits that the learned Addl. District Judge erroneously dismissed the application seeking amendment in the plaint on the reasons extraneous to principles of amendment of pleadings; that after the statement of Respondent No, 3 (Ex.P4) and decree dated 31.1.1974 (Ex.P5), the Respondent No, 3 could not sell the land to Respondent Nos, 1 and 2; that permission of the District Collector under Section 19 of the Act, 1912 does not mean that the obligation of the vendor arising out of the decree dated 31.1.1974 (Ex.P5) were rendered nugatory; that the principle of res judicata, provision of Section 47 CPC or Order II Rule 2 CPC were wrongly invoked by the Courts below; and, that written agreement dated 21.1.1974 (Ex.P8) was per se admissible in evidence.
7. Conversely learned counsel for the Respondents No, 1 and 2 submits that the petitioners' suit was heavily time barred; that written agreement dated 21.1.1974 (Ex.P8) was not proved by producing witnesses; that the consent decree dated 31.1.1974 (Ex.P5) does not bind the Province of the Punjab or the Respondent Nos, 1 and 2; that the suit was not maintainable on the principle of res judicata; and that the concurrent findings of fact cannot be disturbed as there is no misreading or non- reading of evidence available on record.
8. I have heard the learned counsel for the parties and perused the record appended with the petition.
9. The Issues No, 1, 2, 4, 5, 8, 11, 12 and 13 are interlinked and, therefore, I deem it appropriate to discuss the same at the outset. Although the conclusion drawn by the learned Courts below qua these issues is correct yet the rationale thereof requires little more elaboration. It is an admitted fact that Syed Ijaz Hussain (Respondent No,. 3) was an allottee of the suit land measuring 100 Kanals 18 Marlas under the Islamabad Oustees Scheme. The petitioners in their plaint has asserted that the allottee Syed Ijaz Hussain, vide agreement dated 21.01.1974 (Ex. P8) agreed to sell the land for a consideration of Rs, 72,500/- and on the basis of this agreement a consent decree was obtained on 31.1.1974 (Ex.P5) whereby the Respondent No, 3, Syed Ijaz Hussain, was permanently restrained to sell the suit land to any other person except the petitioners; and, that Syed Ijaz Hussain would neither disturb the possession of the petitioners nor, would create any hindrance in the execution of sale deed qua the suit land. The first pivot of the petitioners' claim is agreement dated 21.1.1974 (Ex.P8) but the petitioners have failed to prove the said agreement for the reasons; firstly, that while appearing as PW1, Sakhi Muhammad deposed before the learned trial Court that the sale consideration was paid to Respondent No, 3 in the presence of Yousaf, Nambardar Ali Muhammad, Abdul Aziz and Sharif but the petitioners did not produce any of the above said witnesses before the learned trial Court to prove the transactions; secondly, the statements of other witnesses are neither trust worthy nor can be relied upon as the plaintiff himself admitted that they were not present at the time of making payments; thirdly, the petitioners also did not produce any witness qua the execution. of agreement dated 21.1.1974 (Ex.P8); and, fourthly, suit to the extent of Syed Ijaz Hussain was dismissed by the learned trial Court vide order dated 6.5.1993 due to non-deposit of process fee. In these circumstances, the claim of the petitioners on the basis of unproved agreement dated 21.1.1974 (Ex.P8) could not be decreed. The other document, that is, decree dated 31.1.1974 (Ex.P5) also does not lend any help to the petitioners. The contention of the learned counsel for the petitioners that in view of decree for permanent injunction the Respondent No, 3 (Syed Ijaz Hussain) could not sell the land to Respondents No, 1 and 2, has no force as it is an established principle of law that a decree for perpetual injunction does not invalidate the sale but entails penal consequences for vendor. In this regard it would be germane to cite judgment rendered in the case of Beli Ram and Brothers vs. Ram Lal and others (AIR 1925 Lah. 644) Lal Chand v. Sohan Lal and others (AIR 1938 Lah. 220) and this Court followed the above judgments in the case of Abdul Sattar v. Muhamad Khan etc. (1981 CLC 791) wherein it has been held as follows: "In view of Beli Ram and Brothers vs. Ral Lal and Others (AIR 1925 Lah. 644) bonafide purchasers of property, under temporary injunction restraining alienation, for valuable consideration without notice of any fraud or collusion on the part of the vendor are protected. The same is the position in respect of a decree for perpetual injunction and such a decree does not invalidate the sale, although penal action might be taken against the alienor ".
The above principle was also followed by the learned Division Bench of this Court in the case of Mst Saeeda Akhtar and others v. Lal Din and others (PLD 1981 Lah 623).
10.There is yet another angle to address this issue. The petitioners' claim was that the Respondent No, 3, Syed Ijaz Hussain vide agreement dated 21.1.1974 (Ex.P8) and decree dated 31.1.1974 (Ex.P5) was bound to transfer the suit land in their favour after getting due approval of the Collector under Section 19 of the Act, 1912. Learned trial Court vide order dated 6.5.1993, dismissed the petitioners' suit to the extent of Defendant No 3/Reskndent No, 3 (Syed Ijaz Hussain), due to non deposit of process fee. The petitioners neither challenged order dated 6.5.1993 before the learned Addl.
District Judge nor in the instant civil revision. Hence the order dated 6.5.1993 has, attained finality. In other words the petitioners' basic claim was against Respondent No, 3 and when it was dismissed, the petitioners -could not maintain claim against Respondents Nos, 1 and 2.
11.Now, a question arises that whether Respondent Nos, 1 and 2 are bonafide purchasers of the suit property. The Respondent No, 1 and 2 during the course of evidence proved that before purchasing the suit land they made discrete inquiry about the title of Respondent No, 3 by inspecting the revenue record. In this regard Respondent No, 1 (Ashraf Ali), while appearing as DW1 in his examination in chief categorically stated that before purchasing the suit land he went to the Patwari and examined the record qua the ownership o. f Respondent No, 3 and this part of the statement was not cross examined by the, petitioners. The petitioners have not alleged any fraud or collusion on the part of Respondent Nos, 1 and 2 Besides above, the petitioners' whole claim hinged upon two documents i,e, Agreement (Ex.P8) and decree (Ex.P5) and despite this fact the petitioners did not take any step to get the same recorded in the revenue record. In view of this fact, Respondents No, 1 and 2 may be held bonafide purchasers. All the essential ingredients for the application of Section 41 of the Transfer of Property Act, 1882 are present in the instant case as Syed Ijaz Hussain was the ostensible owner and the sale was made with his express consent for valuable consideration and Respondents No, 1 and 2 being transferees while acting in good faith took reasonable care before entering into the transaction. The Respondent No, 1 and 2 after examining the revenue record got moved an application through Syed Ijaz Hussain to the District Collector for soliciting due approval under Section 19 of the Act, 1912. The District Collector after getting report dated 19.3.1984 (Ex.P2) and taking into consideration the consent of the transferor, Syed Ijaz Hussain, granted approval and on the basis of which Mutation No, 281 dated 9.9.1985 (Ex.P3) was sanctioned. In these circumstances, the petitioners on the basis of decree for perpetual injunction (Ex.P5) could not base any claim and challenge the order dated 21.3.1984 (Ex.P1) passed by the Collector under Section 19 of the Act, 1912 and Mutation No, 281 dated 9.9.1985 (Ex.P3).
12.The findings of the Courts below with regard to Issue No, 7 are not in accordance with the provisions of law. The plaint of the petitioners' first suit for declaration was rejected under Order VII, Rule 11, CPC vide order dated 9.12.1989 (Ex.D8) and appeal against this order was also dismissed vide judgment and decree dated 28.9.1992 (Ex.D9). According to Order VII, Rule 13 CPC when a plaint is rejected under Rule 11 of Order VII, CPC on the ground enumerated under said rule, a fresh plaint on the same cause of action is not barred. Rejection of plaint does not operate res judicata because same is not a decision on merits and the plaintiff is not precluded from presenting a fresh plaint in respect of same cause of action. In this regard reference may be made to Sakhi Muhammad vs. Munshi Khan (PLD 1992 SC 256), Memon Educational Board vs. Munawwar Hussain (2001 YLR 1241), M/s Pakistan Telecommunication Corporation through its Director vs. Abdus Sattar and 5 others (1995 MLD 1563). Similarly, the provisions of Section 47 CPC also could not be invoked to non-suit the petitioners as the questions or claims raised in the second suit for declaration could not be determined during the course of execution of decree dated 31.1.1974 (Ex.P5) passed in the suit for perpetual injunction for the reasons, firstly the word "parties" used in Section 47, CPC only means parties to the suit or their legal representatives and does not include strangers. In this regard reference may be made to Mst. Mariam and 5 others vs. Haji Ali and 3 others (PLD 1985 K 705), Dwipal Chandra Bardhan vs. Jiban Debi and others (AIR 1931 Cal 574), Shyam Lal Bhat vs. Ahmat Bhat and others (AIR 1957 J&K 23). Admittedly, in the suit in which decree dated 31.1.1974 (Ex.P5) was passed, neither Respondent No, 1 and 2 nor the Province of Punjab was party and, secondly. as held hereinabove that a decree for perpetual injunction does not invalidate the approval granted by the District Collector under Section 19 of the Act, 1912 (Ex.P1) and sale Mutation No, 281 (Ex.P3).
13.As regard to bar, of jurisdiction of Civil Court, it may be stated that order dated 21.03.1984 (Ex.P1) passed by the District Collector under Section 19 of the Act, 1912 could not be assailed before the learned Civil Court in view of Section 36 of the Ad, 1912 which contemplates that a Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by the Act, 1912 to dispose and shall not take cognizance of the matter in which the Collector exercises any power vested in him by or under the Act, 1912. In the instant case Syed Ijaz Hussain was the allottee of the land and he moved an application before the Collector under Section 19 of the Act, 1912 for seeking his approval. The Collector after observing due formalities and getting report dated 19.3.1984 (Ex.P2), wherein the application moved by the petitioners was also evaluated or examined, granted approval for transfer of rights in favour of Respondent Nos, 1 and 2. In other words the grant of approval under Section 19 of the Act, 1912 falls within the powers of the Collector and he validly exercised the power on the application of the allottee, Syed Ijaz Hussain. The Hon'ble Supreme Court of Pakistan in the case of Province of the Punjab through Collector District Khushab Joharabad and others v. Haji Yaqub Khan and others (2007 SCMR 544) has held that bar under Section 36 of the Act, 1912 would be available only where Authorities acted within the four corners of their jurisdiction. In the instant case, learned counsel for the petitioner has failed to point out any transgression of power on the part of the Collector and, thus, the learned Civil Court had no jurisdiction to interfere with the order dated 21.3.1984 (Ex.P1) passed by the Collector under Section 19 of the Act, 1912 and Mutation No, 281 dated 9.9.1985 (Ex.P3).
14.The findings of the Courts below qua Issue No, 9 are also not valid. It is an admitted fact that the petitioners were in possession of the suit property at the time of institution of suit. Thus, in view of the principle laid down by this Court in the case of Fazal Begum and another vs. Municipal Corporation, Lahore and five others (1983 CLC 1643) the petitioners were not bound to sue on every denial of their title and could file a declaratory suit at their option and, therefore, the suit filed by the petitioners was within time. The findings recorded by the Courts below on Issue No, 9 are erroneous and thus reversed.
15.The Respondent Nos, 1 and 2 in their written statement raised a preliminary objection that the second suit for declaration F instituted by the petitioners was liable to be dismissed in view of the bar contained in Order II, Rule 2, CPC. The learned trial Court, in this context, framed Issue No,
10. The learned trial Court decided this issue in favour of the defendants and held that the petitioners should have sought the relief of declaration in the earlier suit for permanent injunction. These findings were upheld by the learned Addl. District Judge. In my view the findings of the learned Courts below with respect to Issue No, 10 are not correct. The object of Order II, Rule 2, CPC is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent the plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order II Rule 2, CPC is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not, however, bar a second suit based on a different and distinct cause of action. It is an established principle of law that in order that a plea of a bar under Order II Rule 2, CPC should succeed the defendant who raises the plea must make out 11) that the second suit was in respect of the same cause of action as that on which the previous suit was based (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. Admittedly in the instant case the Respondents No, 1 and 2 being defendants raised a preliminary objection of the bar under Order II Rule 2, CPC and the learned trial Court also framed the issues. In order to discharge the burden to prove this issue the Respondents No, 1 and 2 produced copy of the first suit for declaration with permanent injunction (Ex.D7), order dated 9.12.1989 whereby plaint was rejected under Order VII, Rule 11 CPC (Ex.D8), judgment of the learned Addl. District Judge (Ex.D-9) and also decree dated 31.1.1974 passed in a suit for permanent injunction (Ex.P5). In my view in order to prove the bar contained in Order II Rule 2, CPC the pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both the parties, so as to provide an opportunity to the plaintiff to explain or demonstrate that the second suit was based on a different cause of action. In the instant case, the defendants/ respondents did not exhibit the pleadings of the suit for permanent injunction in which decree dated 31.1.1974 (Ex. P5) was passed and, therefore, the defendants/respondents failed to discharge the onus to prove Issue No,
10. Notwithstanding above, the provisions of Order II Rule 2, CPC could not be pressed into service to substantiate the objection that omission to seek declaration in a suit for permanent injunction, in which decree dated 31.1.1974 (Ex.P5) was passed, debarred the petitioners to institute the suit for declaration mainly for the simple reasons that (i) at the time of institution of suit for permanent injunction the allottee, Syed Ijaz Hussain, neither had received full consideration amount under agreement to sell (Ex.P8) nor had obtained permission of the District Collector under Section 19 of the Act, 1912; and (ii) that Syed Ijaz Hussain, had not agreed to sell the suit land to Respondent Nos, 1 and 2 meaning thereby that the relief claimed in the latter suit was not available at the time of earlier suit.
16. Lastly, I would like to address the legality of order dated 29.1.2005 whereby the learned Additional District Judge, Sahiwal dismissed the petitioners' application moved under Order VI Rule 17 CPC for amendment to include prayer for relief of specific performance. The bare perusal of Order VI Rule 17 reveals that it is divided into two parts. First part is discretionary whereas second part is mandatory. Under the first part, if the Court comes to the conclusions at any stage of the suit that amendment is just and proper and will go to the real matter in controversy, then under second part the amendment should be allowed; provided the other party is not prejudiced. In this regard reliance is placed on Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 S.C.345) The superior Courts have always taken into consideration the following principles for allowing or declining amendment in the pleadings:
(i) The power under Order VI Rule 17 is discretionary and should be used judicially on consideration of special circumstances of each case and the necessary conditions are (a) if the amendments do not cause injustice to other side; (b) amendment is necessary for determination of real question in controversy;
(ii) No party can be allowed to introduce new cause of action by way of amendment; (iii)The Court ordinarily should allow the amendment unless it is found that the applicant was acting malafide or injustice-or injury was likely to cause to the opposite party which could not be compensated by cost; (iv)Where due to subsequent events original relief sought became inappropriate for deciding the controversy, the amendment can be allowed to shorten the litigation; (v)The Court can allow to cure defective pleadings so as to constitute a cause of action where there was none, provided necessary conditions such as payment of additional Court fee or costs of other side are complied with except when there is lapse of time or new cause of action is created; (vi)Where the Court is lacking inherent jurisdiction over the subject matter, it cannot allow amendment 'to bring the suit within its jurisdiction;
(vii) Introduction of inconsistent or contradictory allegations cannot be allowed;
(viii) Delay for itself, cannot be adequate reason for refusing amendment.
Applying the afore-stated principles, application for amendment of plaint of suit for declaration so as to add only a prayer for a decree of specific performance of agreement could not be allowed for the reasons: (a), the petitioners in the suit did not assert the mandatory fact orreadiness and" willingness as per forms of pleadings prescribed in the Schedule, Appendix 'A' at Serial No, 47 and 48 of CPC; (b), agreement to sell (Ex.P8) remained unproved during evidence; (c), the suit to the extent of vendor, Syed Ijaz Hussain, was dismissed by the learned trial Court vide order dated 6.5.1993 due to non-deposit of process fee under Order II Rule 2, CPC and the petitioners neither applied to the learned trial Court under Order II Rule 4, CPC to set the dismissal aside nor assailed it further before the learned Additional District Judge and, therefore, in the absence of Syed Ijaz Hussain no decree of specific performance could be passed; (d), the proposed amendment only in the prayer without bringing any change in the body of the plaint showed nzalafide of the petitioner so as to deprive the Respondents Nos, 1 and 2 of their property which they purchased for valuable considerations; (e), proposed amendment in the prayer was inconsistent with the contents of the plaint; and (f) the proposed amendment could not be allowed to substitute cause of action so as to prejudice the valuable rights of Respondent Nos, 1 and 2 who were bonafide purchasers of the suit property. In view of above, the application under Order VI Rule 17, CPC was rightly dismissed.
17. In view of what has been discussed above, this petition is dismissed with no order as to costs.