111-5fitisa 50. MUM tfiel The respondent brought S. No, 822 of 1968, in civil Court at Karachi, for declaration and permanent injunction on the various pleas raised therein, claiming right of way or common passage. The relevant para. 3, which was {{PAGE BLUR}} ' sought to be subsequently amended, and as a result of which other consequential amendments were also sought is reproduced below: "3. That, according to the record of City Deputy Collector, Karachi, in or about the year 1943, the whole Plot No, PR-2/31 was sub-divided into five plots being PR-2/31, 31/2, 31/3, 31/4, and 31/5. As a result of sub-division or otherwise, a right of way or common passage of 25 feet wide was kept or made or granted between the Plots Nos. 31/2, 31/3 and 31/4 and this common passage or way and right of way was assigned the number of 31/6 and this way and right of way of Plots Nos. 31/1, 31/2 and 831/5 existed ever since the year 1943, when it was so granted and had been enjoyed as such without any let, hindrance or obstruction, by the owner and occupants of the said Plots Nos. 31/1, 31/2 and 31/5."
' The photo-copy of the extract from the C. D. C. Showing the right of way, as aforesaid, is annexure and marked A."
' It would be noted from the above that the plaintiff (respondent) along with the plaint has produced sketch plan, which showed the "Common- passage" in respect of which' she had claimed the right of way or common passage.
2. The petitioner/defendant filed his written-statement and took various pleas in defence. The respondent subsequently, but before any issues were framed made an application under Order VI, rule 17, C. P. C. Which is at page 73 of the record. It is not necessary to reproduce the amendments sought here in extenro, but briefly it may be stated that the respondent by the application sought to amend the plaint by raising additional pleas that there has been in continuous, peaceful and open use of the building/land of PR-2/31/5 for the last over 23 years of the way or right of way which exists partly on the above said Plot No, 31/3 contiguous to the Plots Nos. 31/5, and 31/6 itself, and that due to illegal encroachment by the petitioner on a part of the way or right way, there, has been still in open and peaceful enjoyment "as way or right of way, running from, South North, connecting the said 31/6, running from west to east, admeasuring 12 feet and 9 %" near the said 31/4 and 31/3 and 15 feet 2 inches near the gate of the plaintiff's annexe building on the said PR- 2/31/5. The said way or right of way, with its entry/exist on Victoria Road, is enclosed in 'red' in the Plan extract from C. D. C. Showing the said 31/6 as way or right of way is annexed herewith marked `Al'."
3. The above amendment along with the consequential amendments in other paras. Of the plaint were allowed by the learned trial Court by order passed on 19-10-71 which is reproduced below:- "Heard learned Advocates. The other side Advocate concedes that the amendment sought for would not change or alter the nature of the suit. An application under Order VI, rule 17, C. P. C. Could be made at any time. The amendments sought for do not introduce a new or different case. The amendments refer to elaborate description of the subject-matter in suit. No character of the suit would be changed by the amendments. I therefore grant the application as the amendments .Are necessary for the purpose of determining real questions in controversy between the parties."
' The above order has been challenged by the petitioner by filing this. Revision Application under section 115 of Civil Procedure Code.
4, The contention of Mr, Munawwar Abbas, learned counsel for the petitioner, is that the amendment of the plaint allowed by the learned lower Court. Would result in change of the nature of the suit, which originally was based on grant and now it is sought to be converted into a claim, based on right of way acquired by prescription. This submission of the learned counsel, I am afraid cannot be accepted as it would be seen from the impugned order that concession was made before the learned lower Court that the amendments sought would not change or alter the nature of the suit, I invited the learned counsel to point out if any ground has been taken in the revision application disowning or contradicting the above statement made on behalf of the petitioner/defendant and recorded by the learned lower Court, but he frankly stated that such ground has not been taken in express terms.
5. The learned counsel for the respondent, argued, that the application for seeking amendment was made even before the framing of the issues and that the amendments sought are necessary for purposes of determining the real controversy between the parties which was the right of way or common passage, explicitly shown in the sketch plan annexed to the plaint and that the amendment also became necessary because of insufficient description in the plaint and because of certain encroachment made by the petitioner on a part of the way or right of way. His contention is that the character or nature of the suit would not change as in para. 3 of the plaint the plaintiff has stated that "this common passage or way and right of way was assigned the number as 31/6 and this way or right of way for Plots Nos. 31/1, 31/2 and 31/5 existed ever-since the year 1943, and it was granted and had been enjoyed as such without any let, hindrance or obstruction by the owner and occupants of the said Plots Nos. 31/1, 31/2 and 31/5 existed ever since the year 1943". The learned counsel relied upon cases Rajab All v. Messrs Gujrat Bus Service (1), in the case of Budho and others v. Ghulam Shah (2), in the case of Ata Muhammad v. Mst. Irshad Begum (3), in the case of Fazal Rehman v. Rahim Gul and others (4), in the case of Bahadur Shah and 2 others v. Sharaf and 2 others (5), in support of his submissions that the amendments were rightly allowed by the learned Lower Court.
6. I would however like to invite attention to the principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Syed Akhlaq Hussain v. WAPDA (6), which settles the controversy raised in this petition.
"We consider that there is merit in the submission made on behalf of the appellants. There is indeed a long line of Judicial authorities laying down that amendment should be allowed liberally except when it causes injury to the opposite side."
' It was further held:- "As observed by their Lordships of the Judicial Committee, all rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit." {{FOOT NOTE}}
(1) PLD 1961 Kar. 486 (2) PLD 1963 SC 553
(3) PLD 1962 Lah. 803 (4) PLD 1965 Pesh. 223
(5) PLD 1973 Lah. 513 (6) 1977 SCMR 285 {{FOOT NOTE}} ' It was also pointed out by the Hon'ble Supreme Court in the above case:- ' That the allegations made in support of the amendment are True or false cannot be decided summarily at the time of considering the application made under rule 17 of Order VI of Code of Civil Procedure unless of course the matter is patent on the face of the record."
6. In view of the binding and weighty observations reproduced above, I do not find any substance in this revision petition which, therefore, is dismissed but with no order as to costs.
Petition dismissed.