ABDUL LATIF KHAN, J.- This civil revision has been filed against the judgment and order dated 18-6- 2014 passed by the learned Additional District Judge/ Izafi Zila Qazi, Samabagh, , whereby he dismissed the application of petitioners in respect of amendment in the suit.
2. Arguments heard and record perused.
3. A perusal of record reveals that petitioner filed a suit for declaration to the effect that disputed property alongwith houses are joint ownership of the parties being legacy of their father. Perpetual injunction, recovery of produce and partition were also sought as consequential reliefs. The claim of the plaintiff contested by the respondents and after pro-contra evidence produced by the parties, the trial Court dismissed suit of the plaintiff vide impugned judgment dated 26-2-2013.
4. The petitioner preferred an appeal before the Court of appeal, which is still pending adjudication, however during pendency of appeal an application was moved by the petitioner for amendment of plaint mainly on three (3) grounds. Firstly, by adding Nadar Khan Gojar and Shafiullah as defendants. Secondly, to challenge the transaction made between Nadar Khan Gojar and Shafiullah as one party and defendants as other party and thirdly, to challenge the alleged partition in shape of decision of Jirga. The transaction took place between the persons who are alien to the proceedings and have no nexus with the subject-matter of the suit and if the amendment is allowed the complexion of suit would be changed, which is against the mandate of law. Needless to mention that amendments can be sought at any stage but it always subject to certain limitations and where nature of the suit is changed the spirit of law is that amendment should not be allowed in that eventuality. The transaction between the defendants and others alongwith partition is not an extraneous material for the reason that the defendants No. 1,3,4 & 5 while filing written statement have given touch to this effect in Para No. 1 and Para No. 3 of the written statement but at that juncture the plaintiff has neither filed better statement nor prayed for the amendment of plaint.
Similarly, the statement of DW-1, Umar reveals that the deed was posted as EX-DW-1/1, which was not even objected by the plaintiff nor any serious effort has been made even at that juncture for amendment of plaint or impleadment of any person to the suit and when decree has been passed against him in favour of the defendants and the right has been accrued in their favour, the plaintiff during the course of appeal has filed the application just to frustrate the proceedings aimed to get rid of the decree passed against him. Though amendment can be sought even at appellate stage but the same can be used to frustrate the proceedings conducted in accordance with law or to usurp the rights of the other side by introducing amendment, which is not permissible under the law resulting into the change of entire complexion of the suit or introduce or implead such persons who have got no nexus with subject-matter of the suit. The transaction between Nadar Khan and others with the defendants has got no nexus with the plaintiff for the reason that the defendants owners of their sharai shares out of the suit property would transfer their shares in favour of Nadar Khan etc. and plaintiff being not party to any proceedings cannot be burdened as the plaintiff is not party to any transaction and the transaction between Nadar Khan and others with the defendants and if partition took place between the plaintiff and defendants the property in possession of Nadar Khan and Shafiullah would be deducted from the shares of the defendants and not the plaintiff. The plaintiff failed to point out any infirmity or illegality in the impugned order passed by the learned Additional District Judge, who has decided the matter pending before it with conscious and application of independent mind; warrant no interference.
For the aforementioned reasons, the instant petition being bereft of merits is hereby dismissed in "limini".