' SAHIB KHAN, J.--- The instant petition seeking certain. Amendments in the written statement has been filed by the defendant/ petitioner. Replication on behalf of'the plaintiffs/respondents has also been placed on file, but the same could not be adjudicated for a considerable time inter alia mainly due to non- availability of the learned Counsel.
2. I have heard the learned Counsel for the parties and have gone through the required record.
3. The learned Counsel for the petitioner/defendant submitted that while filing written statement inadvertently, the learned counsel could not mention in the written statement the preliminary objections and factual points mentioned in the application which are necessary for determination of real points in controversy between the parties. The learned counsel to strengthen his arguments gets support of Order VI, rule 17 of C.P.C. Rebutting the contentions of the counsel for petitioner, the learned counsel for respondents submitted that the application is too late; under law opposite party cannot be suffered from the rights accrued through decrees of the Courts. Secondly, the petitioner cannot be allowed to amend his written statement due to his meaningful sleep over the right (if any) for such a long time. Thirdly, the amendments sought being inconsistent with the defence taken in the written statement cannot be granted. The learned counsel in support of his version referred:---
(1) PLD 1987 AJ&K 170, (2) 1990 CLC 1095, (3) 1980 CLC 1866.(4) 1994 CLC 882 and 1994 CLC 955.
4. The petitioner in his petition for amendment has applied for the amendments mentioned in sub- para (1) of the Para 6; whereby, he desires to .Add preliminary objections at Serial Nos.5, 6 and 7.
Through these preliminary objections, he desires to introduce a new story with regard to the property in dispute which is nowhere in the written statement. Likewise, in the Sub-Paras and the petitioner intends to change his defence of " Amanat" taken in the written statement into the gift.
5. Rule 17 of order 6 provided in the Code of Civil Procedure (C.P.C.) deal with the amendments in the pleadings of the parties, whereby, the legislature empowered the Court to allow the amendment of the pleadings at any stage of the proceedings even before the Supreme Court.
However, the discretion of the Courts is restricted by making it imperative in accordance with the language of the rule of the order referred supra; accordingly, the amendment of the pleading can be allowed only in such manner and terms which may be just and proper. In addition to that, further provided that all such amendments shall be made as are necessary in determination of the real questions/points in controversy the parties to the litigation. Through second part of the rule, the vast power exercisable at any stage of the proceeding liberally by the court is restricted by providing the stated specific terms and conditions for amendment in the pleadings.
6. It is recognized principle of law that any amendment may not be allowed likely, "change the nature of the suit, cause of action or both". Likewise, in those cases where on account of an omission to raise a plea in the pleadings, valid rights, were occurred to opposite party; in such cases the amendments are not permissible. Furthermore, it is the duty of the Court to watch the bonafideness/malafideness of the part seeking amendment besides the conditions stated supra.
7. In the present case, it is evident that the case is lingering on for a long time and the case is pursued by the competent lawyers of the region. The opposite party has obtained concurrent findings/decrees in their favour. The question of meaningful silence of the petitioner arises again and again that why he remained mum till this late stage when precious rights have accrued in favour of opposite party which cannot be ignored and defeated? Then the Court is bound to keep in view the bonafideness and intention of a party besides the real requirement of the amendment for determination of controversy among the parties.
8. I have gone through the amendments asked for insertion in the written statement and all of them found to adverse to concept and provision of law discussed above. The plea taken for the amendments is illogical rather fanciful one. The amendment if considered one by one reveals that the petitioner with mala fide intention desires to introduce an inconsistent plea in the written statement rather a new case will come up requiring de novo trial. The defendant defended himself with the defence of "Amanat" till 2006, and now he tries to defeat through other track by adopting the defence of gift that too, without any piece of document in his favour. Similarly, the contention of the petitioner that some of land included in the dispute is owned by him as his share from father's property also seems inconsistent, flimsy and mala fide which cannot be accepted after lapse of the time, whether this fact came to his own knowledge after so many years? The pedigree chart has not also been brought in question at any stage during the trial and admitted one, but today he wishes to amend those facts by saying that one Suffra was also co-sharer in the disputed land. The design and intention behind the application is nothing except mala fide intention to delay the matter. Further to under burden the opposite party and keep him away from the fruits of decree they got after hectic struggle.
9. For the reasons recorded above, I disallow this application for amendment in written statement.
Main case be fixed on an early date for hearing as the matter is pending before the Court since long. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.