MEHMOOD MAQBOOL BAJWA, J. --- This judgment shall also dispose of connected Revision Petition No. 3595 of 2010 titled "Sultan etc. v. Ahmad Yar etc." assailing the vires of order dated 29.7.2010 recorded by learned Civil Judge, 1st Class, Sargodha, whereby the application for amendment of written statement made by respondents No. 1 to 20 was allowed in the suit for possession through specific performance instituted by Ahmad Yar, present petitioner.
2. Necessary facts resulting in filing of both revision petitions are that present petitioner as well as Sultan son of Baza etc. (petitioners in the connected Civil Revision No. 3595 of 2010) instituted suits for specific performance of executory contracts of sale in respect of holding referred to in the respective plaints, which were contested by the adversary. The learned Trial Court consolidated both the suits. The petitioners No. 21 to 27, who are plaintiffs in the suit titled Sultan etc. v. Ahmad Yar etc. Concluded their oral evidence when an application for amendment of written statement was made by respondents No. 1 to 20 in order to incorporate the amendments mentioned in explicit form in para 2 of application, which was accepted vide order impugned.
3. Heard.
Learned counsel for the petitioner while making reference to para 3 of the plaint in his suit and corresponding para of written statement on merits maintained that respondents No. 1 to 20 did not controvert the contents of para 3 of the plaint and contents of said para are totally silent with reference to factum of possession of any party regarding property subject-matter of the suit but in view of evidence led by respondents No. 21 to 27 conscious attempt was made by the respondents No, 1 to 20 to add the amendment regarding possession of property. Further submitted that respondents No. 1 to 20 also sought amendment in the written statement questioning the maintainability of suit instituted by present petitioner contending that on similar cause of action suit instituted previously was dismissed. Argued that proposed amendment being a question of fact was already in the knowledge of respondents No. 1 to 20 and as such could have been conveniently mentioned in the written statement and omission on their part clearly suggest that proposed amendment is an after-thought. Argued that proposed amendment will change the nature and complexion of written statement. In order to substantiate the arguments, learned counsel for the petitioner also made reference to the evidence produced by respondents No. 21 to
27. Submitted that amendment which will change the nature and character of the suit cannot be allowed to be made as held in "Syed NAZIR HUSSAIN RIZVI v. ZAHOOR AHMAD and another" (PLD 2005 Supreme Court 787), "AZAD JAMMU AND KASHMIR COUNCIL through Secretary and 3 others v. Messrs PAIDAR BUILDERS (PVT.) LTD. Through Engineer, Chief Executive" (PLD 2010 High Court (AJ&K) 12) and "ATLANTIC STEAMER'S SUPPLY COMPANY v. m. v. TITISEE and others" (PLD 1993 Supreme Court 88).
Learned counsel for the respondents No. 21 to 27 (petitioners in the connected revision petition) adopted the similar arguments.
Defending the order impugned and repelling the arguments advanced by learned counsel for the petitioner as well as respondents No. 21 to 27 (petitioners in connected revision petition), learned counsel for the respondents No. 1 to 20 maintained that the proposed amendment will not change the nature and complexion of the written statement. Argued that the respondents just want to add the plea regarding the possessory rights in respect of property maintaining that Ahmad Yar (petitioner) and one Muhammad Ashraf are in possession of same as tenants since 1985 and prior to that same was in cultivating possession of the said respondents. Submitted that second objection to be inserted was regarding the maintainability of the suit instituted by Ahmad Yar in view of dismissal of his previous suit on similar cause of action.
Seeking help from the dictum laid down in "Mst. SARDAR BEGUM v. Malik KHALID MAHMOOD and others" (1986 Civil Law Cases 2342), it was argued that the yardstick for the amendment of plaint and written statement is different and though the plaintiff could not be allowed to amend plaint so as to alter materially or substitute cause of action but in the written statement, adding new ground of defence or substituting or altering defence, would not raise same problem as adding, altering or substituting new cause of action. Referring to the dictum in "EHSANULLAH AFRIDI v. PROVINCE OF SINDH and others" (2009 YLR 321), it was argued that the amendment sought to be made will not change the complexion of written statement and as such was rightly allowed by learned Trial Court.
4. Admittedly the proposed amendment mentioned in explicit form in para 2 of written statements relate to factual controversy. Argument canvassed by learned counsel for the petitioner that since the proposed amendment relates to factual controversy and as such could . Have been mentioned in the written statement right from very beginning though may not be questioned but plea regarding dismissal of application for amendment in written statement on this score cannot be endorsed in view of rule of law laid down in "Mst. WAZIR BEGUM v. Mst SARDAR BEGUM and 7 OTHERS"
(1979 CLC 72) in which while repelling argument advanced by the adversary on similar grounds, application for written statement was allowed by this Court. There is little cavil with the well expounded proposition of law that application for amendment in pleading can be allowed at any stage. Argument advanced by learned counsel for the petitioner on the strength of rule of law expounded in the reports relied upon is hardly subject to any exception that if the proposed amendment will change the nature and complexion of the case it will not be allowed. Question for consideration is whether the proposed amendment will change the stance of respondents No. 1 lo 20 or not. Though reference was made by the learned counsel for the petitioner to para 3 of the plaint as well as written statement but nevertheless nothing was suggested at the instance of respondents No. 1 to 20 with reference to the possession of any particular person. In view of the matter, stance of respondents No. 1 to 20 regarding the possession prior to 1985 and after 1985 undeniably would not change the nature of defence taken by respondents No. 1 to 20. Objection regarding maintainability of suit in view of dismissal of earlier suit on similar cause of action, requires serious consideration and will also not ensue the result advanced by learned counsel for the petitioner and respondents No. 21 to 2.
5. Argument regarding falsity of plea of possession prior and after 1985 cannot be taken into consideration as veracity or falsity of plea to be inserted in the pleadings is not to be considered while deciding the moot point which can be scanned at appropriate stage after recording evidence.
6. Yardstick for grant of amendment in plaint and written statement is different as held by this .Court in "Mst. SARDAR BEGUM v. Malik KHALID MAHMOOD and others" (1986 Civil Law Cases 2342), in which it has been held at page 2345 as follow:--- "Where the defendants seek amendment, consideration that weigh with the Court in allowing amendments in the written statement are not to be covered by the same principle as amendment of a plaint. A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute cause of action or nature of his claim, but the same principle will not be applicable to the amendment of the defence or written statement. Adding a new ground of defence or substituting or altering a defence, does not raise the same problem as adding, altering or substituting a new cause of action. The Courts, therefore, are inclined to be more liberal in allowing amendment in defence than of the plaint."
I am in respectful agreement with the view expressed and as such proposed amendment, even if presumed to be raising new plea could not be declined.
7. Revisional jurisdiction can be exercised in case of non-assumption, illegal-assumption or exercise of jurisdiction illegally or with material irregularity.
Pursuant to above discussion, the petitioner and respondents No. 21 to 27 failed to point out any such jurisdictional defect in the order assailed warranting no interference by this Court resulting in dismissal of both the revision petitions but without any order as to costs.
Civil revision .