' CH. MUHAMMAD IBRAHIM ZIA, J.---The captioned appeal with the leave of the Court is filed against the judgment of the High Court dated 16-2-2010 whereby on a civil appeal filed by respondent No.1 the judgment and decree of the trial Court and that of the Additional District Judge have been vacated and the case has been remanded to the trial Court for afresh decision.
2. Brief facts necessary for disposal of appeal are that respondents No.1 and 14 brought a suit in respect of the land comprising Khasra Nos. 1243, and 1243-min, measuring 55 kanals, 16 marlas, situated in Village Sorakhi, Tehsil Dadyal, DiStrict Mirpur for declaration in the Court of Civil Judge, Dudyal against the defendant-appellant on 5-5-2003. They claimed ownership of the suit-land on the basis of private settlement and further averred for adverse possession as an alternate relief.
The suit was contested by the defendants-appellant by filing written statement. He refuted the claim and denied the settlement through private partition. The learned trial Court, in the light of pleadings of the parties, framed the issues and directed the parties to produce evidence in support of their respective claims. After completion of trial, the suit was dismissed for want of proof and cause of action on 7-4-2005.
3. Feeling aggrieved from the judgment of the trial Court, respondent No.1 herein, challenged the same before the learned District Judge Dadyal on 20-4-2005) but the appeal met the same fate.
Respondent No.1 filed second appeal in the High Court on 7-12-2005; challenging the judgment and decree of the Additional District Judge Dadyal dated 12-9-2005. He also filed an application for amendment praying therein that he ivants to bring on record the copy of the gift-deed dated 2-6- 1965, copy of Mutation No. 881, copy of the gift-deed dated 1-9-1994 and Mutation No.16. The learned Chief Justice High Court, after hearing the parties, vide judgment dated 16-2-2010, accepted the application for amendment, vacated the judgments and decrees recorded by the trial Court as well as first appellate Court, remanded the case to the trial Court with the direction to frame additional issues after receiving the amended plaint and written statement, and allowing the parties to adduce evidence for and against, decide the case, afresh. The appellant herein has assailed the judgment of the High Court dated 16-2-2010, through the instant appeal.
4. Ch Muhammad Mehfooz Advocate, the learned counsel for the appellant, after brief narration of facts, seriously attacked the impugned judgment of the High Court and submitted that the learned Chief Justice High Court fell in error of law and facts while handing down the impugned. Judgment.
He forcefully submitted that both the trial Court and first appellate Court, after due application of mind, recorded findings and there was no justification to set aside the same. While arguing on merits of the case, he submitted that the prayed amendment cannot be allowed as due to incorporation of the same, an inconsistent factual position shall. Arise which is not permissible under law. The prayed amendment makes the stand of respondents contradictory and is destructive one. On one hand, they claim that the suit property in their ownership and possession due to private partition and on the other hand, at the same time, in the amendment application, contradictory stand has been taken that same land is in their ownership and possession due to a registered gift-deed. He further submitted that the alternate prayer for decree of adverse possession is also against law as after incorporation of substantial amendments in the Law of Limitation, theory of adverse possession is no more operative. He finally submitted that the application has been filed with mala fide intention at a belated stage which makes the application as inadmissible. Thus, this appeal merits acceptance and conesquently, the judgment is liable to be set aside.
5. Mr. M. Zakria Bhatti Advocate, the learned counsel for the respondents, while controverting the arguments of learned counsel for the appellant, forcefully defended the impugned judgment on the ground that according to spirit of law and administration of justice, in the light of principle of law enunciated by the superior Courts, amendment in the pleadings be allowed liberally to avoid multiplicity of litigation and resolve the real and substantial controversies prevailing among the parties. He further submitted that the amendment can be allowed at any stage. To apply for amendment at later stage, does not bar such application. While clarifying the point of contradictory stand, he submitted that it is the result of misconception and the appreciation of pleadings does not admit such stand. The parties are co-sharers and the respondents-plaintiffs claim the ownership of the land on the basis of private partition whereas through the prayed amendment, they want to bring on record some registered gift-deeds through which the predecessor-ininterest has gifted the same property which even otherwise has to devolve upon them in the course and process of inheritance. Thus, it is in continuation and support of the claim of the private partition and does not amount to contradiction. He also submitted that in compliance of the judgment of the High Court, the amended written statement has already been filed thus, even on this aspect, this appeal has become infructuous. So far the prayer of adverse possession is concerned, he submitted that a party can pray for many reliefs but the court has to grant the one which is permissible under law, therefore, on this ground, the suit cannot be thrown out. He referred to the cases titled Bahadur Shah and 2 others v. Sharaf and 9 others reported as (PLD 1973 Lah. 513), Karamat Ali and another v. Muhammad Younas Haji and others reported as (PLD 1963 SC 91), Mst.
Bashira Begum v. Walayat Khan and 6 others reported as (2008 SCR 118) and Muhammad Rizwan v.
Abdul Jabbar and others reported as 2000 YLR 1844 to substantiate his stand and submitted that the appeal has no substance and the same may be dismissed.
6. We have considered the arguments of learned counsel for the parties and also gone through the record of the case. The matter in this appeal relates only to amendment of the plaint. The respondents, through their application have requested for amendment to bring on record the documents i.e. Registered gift-deeds of the suit property through which one Fazal Din has gifted the property to his sons-respondents. The contesting parties are co-sharers. At this stage we would not like to record any definite observation on the merits of the case because the trial Court may be influenced from such observation.
7. A tentative assessm ent and appreciation of over-all material, in our considered view, depicts that prima facie the proposed amendment neither creates new cause of action nor it changes the complexion of suit. Furthermore, the objection of contradictory stand has no substance. Our this view finds support from recent judgment of this Court in the case titled Bi Rani and others v. Sher Muhammad and others, Civil Appeal. No.37 of 2009, decided on 15-10-2012 wherein following observation has been made:-- "It is well-settled now that if due to proposed amendment, nature of the suit and cause of action is not changed, the same can be allowed. Our this view finds support from the case titled Muhammad Iqbal v. Mirza Begum and 2 others, reported as (1992 M LD 1257), wherein this Court observed as under:-- "... On this question, there is consensus of the superior. Courts that amendment can be allowed if two conditions are fulfilled. Firstly that the amendment should not change the nature of the suit and, secondly, that new cause of action is not thus set up. From a perusal of the case law, which I will, be noticing later on, on the subject it appears that at the early stages the view held by some of the superior Courts was that limitation plays some part while deciding the prayer for amendment.
However, the trend in last fifty years or so generally has been that delay is not a determining factor in the matter of amendment. To my mind the correct law is that once the two conditions, as aforesaid, are fulfilled amendment has to be allowed, delay or negligence notwithstanding. "
8. The contention of learned counsel for the appellant that the application for amendment has been filed at appellate stage, therefore, such belated prayed amendment cannot be allowed is considered in its perspective and in the light of the facts of this case. Mere delay in filing the amendment application, is not a valid reason for refusal of the prayed amendment. Our this view stands fortified from the case titled Alam Din alias Alam Sher and 3 others v. Alam Din, reported as (PLD 1990 SC AJ&K 1] wherein following observation has been made:-- "25 After giving our dispassionate thought to the arguments advanced at the bar, we feel that generally delay alone in applying for amendment after expiry of the period of limitation is not a ground for refusing an amendment in the plaint. Each case, however, depends upon the circumstances that it carries. Be that as it may, delay alone in applying for amendment cannot be a determining factor for deciding the application under Order VI, Rule 17, Code of Civil Procedure.
Use of expression "at any stage of proceedings" in Rule 17 is hot without significance. The word "proceedings" is to be interpreted in a liberal manner so as to give the proper scope to the, rule in accord with its purpose, including the appellate stage and that too up to the Supreme Court.
26. We feel that the above interpretation is in accord with the mandatory language used in Order VI Rule 17 to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy" therefore, our view is that once the Court decides that the amendment, is necessary for the said purpose of determining the real question, in controversy the amendment is to be allowed.
' What has been stated above, however, is 'subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment.
27. Coming to the merits of the present case, as said in the application for amendment, the facts on which the respondent-plaintiff relied in the amendment application would not make any substantial change in the plaint. If it is held that the adverse possession has matured into title in the year 1983, then dispossession of the land can be restored to the plaintiff because the doctrine of lis pendens would apply with all force to the present case."
9. It is now almost celebrated principle of law that for doing complete justice and to avoid multiplicity of litigation, amendments in the pleadings have to be liberally allowed. The adjudication of lis on merits is always encouraged and desired by the superior Courts. In view of the peculiar facts of this case, in Our opinion, the learned Chief Justice High Court has rightly allowed the amendment and the impugned order does not suffer from any illegality or infirmity.
10. So far the submissions of learned counsel for the appellant relating to merits of the case are concerned, these are premature as neither - the High Court through the impugned judgment, has, nor this Court is going to finally decide the case. As the final disposal will be made by the trial Court, therefore, the appellant-defendant's objection regarding merits of the case will be attended by the trial Court according to law.
' In the light of hereinabove discussed detailed reasons, finding no force, this appeal stands dismissed.