' GHULAM SARWAR KORAI. J.---This civil revision application under section 115, C.P.C. Has been filed against the judgment dated 3-9-2008, passed by the Court of learned IInd Additional District Judge Karachi South in Civil Appeal No,153 of 2005, filed against the order dated 30-8-2005, passed by the Court of learned VIIIth Senior Civil Judge, Karachi South in Civil Suit No,1415 of 2003.
Whereby, an application under Order VI, Rule 17, C.P.C. For amendment in title of the plaint filed by the respondent/plaintiff was dismissed so also the suit of the respondent/plaintiff was dismissed with no order as to costs.
2. Precisely, facts of the case are that respondent/plaintiff filed suit against the applicant/ defendant for recovery of Rs,25,34,942. After service upon the applicant/defendant, he filed written statement. During pendency of the suit an application under Order VI, Rule 17, C.P.C. Was filed by the respondent/plaintiff for amendment in the title of the plaint. The learned trial Court not only dismissed the application of the respondent/plaintiff but also dismissed the suit with no order as to costs.
3. Against that order Civil Appeal No,153 of 2005 was filed by the plaintiff/respondent and his appeal was disposed of, wherein, the order passed by the trial Court was set aside and case was remanded back to the trial Court to pass a fresh order on the application under Order VI, Rule 17, C.P.C. After affording opportunity of being heard to the parties, as such, that judgment is impugned in the present civil revision application.
4. Heard Mr. Altaf Hussain, learned counsel for the applicant and Mr. Khalid Javed, learned counsel for the respondent. Learned counsel for the applicant mainly argued the case that order passed by the trial Court was a proper one and the appellate Court without providing opportunity of being heard to the applicant disposed of the appeal by directing the trial Court to pass a fresh order on the application under Order VI, Rule 17, C.P.C. Filed by the plaintiff/respondent. He has further contended that at the time of announcement of the judgment by the appellate Court neither the applicant was present nor his counsel. His client was informed by the Reader of the Court that appeal has been disposed of. He also contended that the present civil revision application is supported with affidavit of applicant as well as Muhammad Akram, counsel of the applicant. He further contended that the respondent sought amendment in the title of the suit at the belated stage and if his application is allowed then cause of action will be counted from the date of filing of amended title of the suit, by this way the suit was time-barred and was rightly dismissed by the trial Court. He further argued that subsequently the application under Order VI, Rule 17, C.P.C. Filed by the respondent was allowed by the trial Court without giving chance of being heard to the applicant. He prayed that his civil revision application be allowed and judgment passed by ,the appellate Court be set aside and order passed by the trial Court be maintained.
5. Learned counsel for the respondent contended that the suit was filed by the plaintiff under the name and style as follows:-- "Messrs CACHE Systems, Pakistan A Proprietorship concern through its sole Proprietor Nadeem Ali Khan,son of Hamid All Khan, Muslim, Adult, Having Office at 515, Park Avenue, Shahrah-e-Faisal, Karachi." ' while an application under Order VI, Rule 17, C.P.C. Was filed with proposed amendment as follows:-- "Nadeem Ali Khan son of Hamid All Khan, Muslim, Adult, doing business Under the name and style of "Messrs CACHE Systems, Pakistan A Proprietorship concern Having Office at 515, Park Avenue, Shahrah-e-Faisal, Karachi."
' Therefore, such amendment will not involve substitution or addition of the parties. He has relied upon the case of Messrs PUB CORPORATION v. WATER AND POWER DEVELOPMENT AUTHORITY through Managing Director and 2 others reported as PLD 2009 Karachi 139. He also argued that written arguments were also filed by the counsel for the applicant and also after hearing the arguments the case was fixed for announcement of judgment and after some days it was announced and presence of the parties on the date of announcement of judgment is not necessary. He has also referred the case diaries dated 24-3-2008, 21-7-2008, 6-8-2008, 23-8-2008 and 3-9-2008, showing the opportunity provided to the applicant of being heard, however, counsel for the applicant failed to do so. He also contended that on 26-3-2007 an application under Order VI, Rule 17, C.P.C. Was filed before the Appellate Court to amend his description in the title of the memo. Of appeal and further to maintain the title of the appellant which was appearing as plaintiff in the suit.
This application was allowed by the appellate Court with no objection by the counsel of the respondents.
6. I have perused the file. Suit was filed by "Messrs CACHE Systems, Pakistan, A Proprietorship concern through its sole Proprietor Nadeem All Khan, son of Hamid All Khan, Muslim, Adult, Having Office at 515, Park Avenue, Shahrahe-Faisal, Karachi." while the amendment was sought to the extent to appear the name of Proprietor Nadeem All Khan in the title of the plaint. There was only option for the trial Court to allow the application or dismiss the same but not only the application was dismissed but also suit of the respondent was dismissed though prior to this order an application under Order VII, Rule 11, C.P.C. For rejection of plaint was dismissed. This order was challenged in the appeal. During pendency of the appeal an application under Order VI, Rule 17, C.P.C. Was filed with the prayer to allow the appellant to amend the description in the title of the memo of appeal and further be allowed to maintain the title of the appeal, which was appearing as plaintiff in the suit. This application was filed on 26-3-2007. On 25-10-2007 learned counsel 'for respondent/applicant endorsed on the application with signatures as "Without prejudiced shown no objection for this application only." The learned appellate Court considering the no objection of the counsel of the respondent (present applicant) allowed the application with the following order:- "By consent allowed as prayed, appellant is directed to file amended title before the next date."
7. So far contention of the counsel for the appellant is concerned that he was given no chance to argue the appeal, I would like to refer the case diary dated 21-7-2008, which reads as follows:-- "Case called. Advocate for the appellant present. None present on behalf of respondent side. Now it is 12-40 p.m. Arguments heard on behalf appellant side. The advocate for the respondent has already filed W.A. Which are on the record. However, he is at liberty to argue the case on or before next date of hearing. Put off to 6-8-2008 now for judgment."
8. The bare reading of the above diary as well as subsequent diaries dated 6-8-2008, 23-8-2,008 and 3-9-2008 it appears that the counsel for the applicant was given ample opportunities to argue the case but he failed to argue the case even no application for adjournment was filed by him, therefore, in my view affidavit filed along with civil revision application by the applicant as well as by Mr. Muhammad Akram Zuberi advocate appear to be absolutely false. The case was remanded back by the appellate Court vide Judgment dated 3-9-2008. This judgment was received in the trial Court on 13-9-2008, therefore, a fresh order was passed on application under Order VI, Rule 17, C.P.C. Of the plaintiff and his application was allowed on 20-1-2009. This revision application was listed first time on 11-2-2009. Notices were ordered to the respondent for 18-2- 2009, meanwhile, trial Court was directed not to pass any adverse order against the applicant till the next date of hearing.
9. Suit was filed by Messrs CACHE Systems Pakistan, a Proprietorship concern through its sole Proprietor Nadeem Ali Khan and plaint was also verified by him, in the application for amendment, neither the plaintiff was changed nor any newly party was added or character of the suit was disturbed, hence the misdescription in the title of the plaint appears to be bona fide typographical error, which can be corrected by amendment in its title even with red ink and such amendment will not involve substitution or addition of the parties. This view was taken by this Court in the case of Messrs PUB Corporation (supra).
10. From the above discussion, I find no legal infirmity in the. Impugned judgment of the appellate Court, which is well-reasoning judgment and does not warrant interference by this Court, therefore, this civil revision application was dismissed vide short order dated 24-10-2012 and these are the reasons of the same.
' Record and proceedings called from the trial Court vide this Court's order dated 1-10-2009, be remitted back immediately. Since the case is old one, therefore, in the interest of justice, the trial Court is directed to decide the same sharply preferably within a period of six months.