MUHAMMAD AMEER BHATTI, J. --- This revision petition is directed against the judgment and decrees dated 20.03.1998 and 25.05.2000 passed by both the learned Courts below whereby the suit and the appeal filed by the present petitioner were dismissed.
2. The brief facts of the case are that the petitioner filed a suit for declaration to the effect that the respondents be restrained from asserting any right in the suit property and be restrained from interfering into the-possession of the petitioner/plaintiff and also sought the decree for restraining =the respondents/defendants from changing the nature and character of the property in dispute.
The suit was contested by the respondents by way of filing their written statement whereby they controverted the facts of the case. The learned Trial Court framed the necessary issues keeping in view the divergent pleadings of the parties. The parties were allowed to lead their evidence according to their onus on issues. The learned Trial Court while recording its finding dismissed the suit on 20.03.1998. The petitioner preferred an appeal against the judgment and decree of the learned Trial Court on 13.04.1998 and during the pendency of this appeal, filed an application under Order VI, Rule 17, C.P.C. For the amendment of the plaint. The learned first Appellate Court after seeking the reply from the respondents, vide order dated 25.05.2000, dismissed the application for amendment and on the same day while rendering the impugned judgment, dismissed the appeal of the petitioner. The learned counsel for the petitioner besides merits of the case argued application for grant of amendment sought on behalf of the petitioner and contends that the learned first Appellate Court dismissed the application for grant of amendment contrary to law laid down by the Hon'ble Supreme Court reported as Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345), wherein it has been held that the amendment in the pleadings can be allowed at any stage of the proceedings. The learned counsel for the petitioner further contends that the amendment sought in the plaint is the real crux of the matter in dispute, as it is necessary to determine whether the land in dispute was a trust and it was Waqaf for the benefit of the tribe and unless it is not determined, the Court could not reach 'to just decision of the case.
3. On the other hand, learned counsel for the respondents contends that in the plaint, the petitioner claimed himself to be an owner of the land whereas in the amendment introduced through an application. Altogether changed the stance and set up an absolutely new case and is in glaring contradiction of the plaint by narrating that land in dispute was waqf/trust and remained for the use of beneficiaries, therefore, this amendment changed the nature of the suit, which is not permissible under the provision of law. Thus, the application of the petitioner was rightly dismissed by the learned first Appellate Court and the respondents are entitled by virtue of the will executed by the owner of the land and thereafter the respondent inherited the property under the Muslim Personal Law (Shariat) Application Act, thus, the amendment sought by the petitioner could not be allowed to start another round of litigation.
4. I have considered the arguments of the parties and gone through the record of the case.
5. In the plaint, the petitioner claimed himself to be entitled to the ownership of the land in dispute on the basis of the documents whereas on the basis of the same documents, now the petitioner sought amendment in the plaint with the prayer that the documents in dispute manifestly made it clear that the transfer of title in property as a trustee to be administered by the eldest son who was to act as trustee, therefore, this property could not be devolved upon any family of any trustee. The question in dispute is a declaration about the status of the property on the basis of the documents relied upon by the parties, therefore, it would be appropriate and in the interest of all the parties that the present amendment should be allowed to effectually resolve the controversy between the parties once and for all. The delay alone will not sufficient to disallow the prayer for adjudication of a real and substantial claim which be could not take at initial stage of the proceeding. According to the law laid down by the Hon'ble Supreme Court referred Supra, the only contradiction to the original in the pleadings are not allowed to be introduced, whereas, complimentary, additional and alternative pleas are permissible to be allowed at any stage. In the light of the above-settled criteria, the amendment sought by the petitioner was judged and it is found that the amendment required to be introduced through application, is not inconsistent with the yardstick/parameter prescribed by the Hon'ble Supreme Court. Therefore, amendment sought through an application does not change the nature of the suit, as deletion of some part of the plaint and incorporation of additional facts in the pleadings without changing the nature of the suit or underlying basis of the suit cannot be termed as a change of cause of action that alter the nature of the suit. It is evident that originally the claim of the petitioner was that property could not be transferred in the name of the respondent on the ground that it had to be transferred to the petitioner as an owner but through the amendment his claim about the mutation was sanctioned in the name of the respondent, is the same but he introduced himself as a trustee of the land in dispute on the basis of the 'will' etc. Where according to the plaintiff, the trust was established for the benefits, of the tribes. Therefore, by virtue of this amendment, no change in the cause of action has been found and accordingly the application for amendment is allowed. Consequently the judgments of both the Courts below are set aside. The matter is remitted back to the learned Trial Court which will provide the opportunity to the petitioner/plaintiff to file the amended plaint after incorporating the proposed amendment in the plaint and after providing the opportunity to the respondents for filing their amended written statement, re-frame the issues, provide the parties opportunity to lead the evidence, if necessary, and then decide the matter strictly in accordance with law.
6. Since it is an old matter, the learned Trial Court is directed to finalize the matter within a period of four months from entrustment of the case. Parties are directed to appear before the learned Senior Civil Judge, Gujrat on 04.07.2012, who shall take on this matter either himself or entrust it to any learned Civil Judge for adjudication in accordance with law. The compliance report shall be submitted to the Deputy Registrar of this Court.
7. With the above direction, this petition stands accept.