AMIN-UD-DIN KHAN, J.---Through this Civil Revision, the petitioners who are defendants in pre- emption suit have challenged the order. Dated 21-2-2011 passed by the learned Additional District Judge, Nankana Sahib, whereby an appeal filed by the petitioners was dismissed against the order dated 28-4-2010 passed by learned Civil Judge 1st Class, Nankana Sahib whereby an application to amend the written statement filed by the petitioners under Order VI, Rule 17, C.P.C. In a suit for possession through pre-emption was dismissed.
2. Compendiously and tersely put, the facts forming part of this revision petition are that in a suit for specific performance in execution thereof the learned trial Court got registered the sale deed of the suit property through the reader of the court which was registered at Serial No,252 on 7-4-2005 by the Sub-Registrar, Nankana Sahib. The respondent-plaintiff pre-empted the sale by filing a suit for preemption on 5-5-2005. Written statement was filed, issues were framed. On 24-2-2010, the petitioners-defendants filed an application under Order VI, Rule 17, C.P.C. For permission to amend the written statement by inserting their assertions mentioned in para-2 of the application. They actually sought permission to plead that the suit for specific performance was filed on the basis of an agreement to sell dated 19-1-1986 and all other circumstances with regard to the proceedings of that suit. The, reply was filed. The learned trial Court vide order dated 28-4-2010 dismissed the application. Against the said order an appeal was preferred before the lower Appellate Court and the same was also dismissed vide order dated 21-2-2011. Both these orders have been challenged through this Civil Revision.
3. Learned counsel for the petitioners confends that permission to amend the suit can be granted at any time and at any stage and the principle is that nature of the suit must not be changed and this rule is also applicable to the written statement; that the basic defence must not be changed by the amendment. Learned counsel for the petitioners further submits that the amendment was necessary as the circumstances in which the proceedings of the previous suit in which sale deed has been made in favour of the petitioners- defendants is subject matter of the suit of pre- emption and further for fixation of the price of the land these amendments are necessary. Learned counsel for the petitioners has relied upon the following cases-law:-
(i) PLD 1985 SUpreme Court 345 (Mst. Ghulam Bibi and others v. Sarsa Khan and others)
(ii) 2008 CLC [Karachi] 946 (Ahmed Jamil Ansari v. Messrs AlHogani Securities and Investment Corporation (Pvt.) Limited)
(iii) 2003 SCM R 318 (Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst.
Ghulam Safoor and others)
(iv) 1986 SCM R 1799 (Ahsan Kausar and others v. Ahmad Zaman Khan)
(v) 1993. CLC 2033 [Karachi] (Treasurer of Charitable Endowments for. Pakistan v. Inamur Rehman Alvi), and
(iv) PLD 1963 Supreme Court 191 (Keramat Ali and another v. Muhammad -Yunus Haji and others).
4. On the other hand, the learned counsel for the respondents-plaintiffs has vehemently opposed the prayer of the petitioners and has supported the impugned orders of both the courts below, according to him both the courts below have rightly exercised their jurisdiction, therefore, need not to be interfered with by this Court. It. Is further contended that the petitioners-defendants filed written statement in the year 2006 after a lapse of 4 years, moved application under Order VI, Rule 17, C.P.C. And both the learned courts below have concurrently declined the request for amendment in the written statement. Reliance in this regard is placed on 1997 SCM R 416 (Karamat Ali and 6 others v. Hakim Ghulam Hussain) in support of his contentions.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their assistance with due care and caution.
6. Order VI, Rule 17, C.P.C. Provides that the Court may at any stage of the either party to amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
7. It is admitted by learned counsel for the parties that when application for amendment of written statement was filed the evidence of the plaintiff had not yet started. Even it is admitted that even now the evidence has not yet been completed by the plaintiffs-respondents. I have noticed that through the proposed amendment in the written statement the petitioners-defendants want to bring on record the true facts and the A proceedings of the lis in which the impugned sale-deed has been issued. I have also noticed that to some extent the facts sought to be pleaded in para 2 of the written statement are available in the impugned sale deed. I have noticed that the proposed amendment does not change the defence of the petitioners-defendants and it will neither alter the nature of the suit/written statement, nor raised any new plea of defence.
8. It will not be out of place to observe that when the plaintiff files a suit to pre-empt the sale, he admits the sale and sale deed in toto and then claims his right of pre-emption on that sale. For final determination of the matter in controversy between the parties, true facts are required to be put before the court and there must be complete evidence. If the pleadings are not complete, the petitioners-defendants will not be able to produce complete evidence as the circumstances of this case are very peculiar when on the basis of an agreement to sell the lis started in the shape of suit for specific performance and on the basis of which sale deed was got registered by the executing court through its agent, i.e, reader of the court and the same is under pre-emption in the lis in hand.
9. So far the contention of the, learned counsel for the respondents that the petitioners-defendants filed written statement in the year. 2006 and after a lapse of 4 years moved application under Order VI, Rule 17, C.P.C. And both the learned courts below have concurrently declined the request for amendment in the written statement is concerned, suffice it to say that the delay only cannot be a ground for refusal to amend the pleadings, as the delay alone in applying for the amendment cannot be a determining factor for deciding an application under Order VI, Rule 17, C.P.C. The use of the expression "at any stage of the proceeding" in rule 17 is not without significance. The case-law cited by the learned counsel for the respondents is not applicable to the facts and circumstances of this case as the circumstances of this case are not the circumstances of ordinary cases.
10. The power to grant amendment, being procedural is to be used for the purpose of dispensation of complete justice and the Court may not hesitate in allowing the amendment to cure the formal defects, which is bona fide and has been occurred due to mistake of fact or misapprehension. The case-law relied upon by the learned counsel for the petitioners is fully applicable to the facts and circumstances of the present case. In my considered opinion to do substantial justice amendment is necessary for the purpose of determining the real matter in controversy.
11. For what has been discussed above, I allow this Civil Revision and set aside the impugned orders passed by both the courts below and F an application for permission to amend the written statement filed by the petitioners is allowed.