MUHAMMAD FAISAL KAMAL ALAM, J.---The Plaintiff through the instant Application (CMA No,1432 of 2015), has sought certain proposed amendments in title and paragraph- 5 (of the plaint), so also in the prayer clause.
2. In support of his arguments, learned counsel has referred to the prayer clause that though the prayer for handing over of peaceful possession is mentioned in the prayer clause "b", but, by way of proposed amendment, the said prayer clause has been phrased with specific details, in the following manner:- "BB: The Defendants Nos.3, 18 and 19 be directed to handover vacant and peaceful physical possession of Flat No,814, 8th Floor, 'Marine Drive Apartment' FL-10, Block-2, Clifton, Karachi to the Plaintiff and on failure, the Nazir of this Hon'ble Court be directed to obtain physical possession thereof and to handover the same to the Plaintiff"
3. Since the instant suit pertains to, inter alia, Flat No,814 situated in the multi-stored project, namely, Marine Drive, built on Plot No,FL-10, Block--2, Clifton, Karachi and it has been pleaded in paragraph-5 of the Plaint that various suits relating to the same project have been filed by different encroaches, who are defendants in the instant suit, on the basis of false/fabricated documents, therefore, as per learned counsel for the plaintiff, the latter by way of proposed amendments intends to amend the said paragraph-5 with specific details in respect of Flat No,814, to the effect that Defendants Nos.3, 16 and 19 in league with each other and on the basis of forged documents, had encroached the said Flat No,16.
4. It was further contended by the learned counsel for the Plaintiff that relief of possession as proposed in the above amendments, is a consequential relief, which ought to be granted' in view of various judicial pronouncements, crux of which is that if ,the suit is otherwise maintainable, then it should not be failed due to the reason that a consequential relief is not prayed for. To support his submissions, the learned counsel for the Plaintiff has relied upon following Judgments.
1. PLD 1971 SC Page 762
2. 1983 SCMR Page 1178 (at 1182, Para-10)
3. 1995 SCMR Page 69 at 71(A))
4. PLD 1985 SC Page 351
5. 1986 SCMR Page 1575 at Page 1576.
6. On the other hand, learned counsel for the defendants Nos.3 and 18 has filed their Counter Affidavit to the above application and vehemently opposed the proposed amendments. Learned counsel for the plaintiff firstly argued that the instant suit is of year 2000, whereas, the listed application for amendments in the pleadings has been filed in 2015, with mala fide intention, being an afterthought after lapse of almost fifteen yeaRs, It was next argued that the issues have already been settled and affidavits-in-evidence of the parties have been filed and if the above application is granted, it would further delay the proceedings. Besides, taking a legal plea that the application has been filed by an unauthorized person, it was also argued on behalf of the defendants that object of filing the instant application is to overcome the legal lacunas and to dilute the effect of Order II, Rule 2 of C.P.C. As well as Article 144 of the Limitation Act, where under, for possession of an immovable property, the suit should be filed within six yeaRs,
7. In support of his arguments, learned counsel for the defendants has referred to another Suit No,175 of 2000, (Plaint whereof is Appended as Annexure "P/ 1" with the instant Suit), sub judice in this Court, filed by the plaintiff against the different defendants, including the present defendants, to fortify his arguments that in the pleadings of the above referred Suit No,175 of 2000, which is prior in time, its paragpah-5 (of the plaint) as well as paragraphs "b" and "d" of the prayer clause have already mentioned the subject Apartment / Flat No,814 with relief of its possession.
8. Mr. Sikandar Khan Yasir, learned Counsel for Defendants Nos.3 to 8 have relied upon ..The following case law, gist of which is that (i) the amendments sought for in the pleadings should not prejudice other side, (ii) it should not change the complexion of the case, (iii) the amendments should only be allowed in the pleadings if same are just and proper and (iv) it is prayed in the good faith.
1. PLD 1993 SC Page 88
2. PLD 1993 SC Page 332
3. PLD 1982 SC Page 30-31
4. PLD 1992 SC Page 180
5. PLD 1980 Karachi Page 345
8. Pleadings of the parties have been perused and the case law cited has been considered.
9. The scope and extent of Order VI Rule 17 of C.P.C. Has been expounded through various judicial pronouncements and the case of Mst. Ghulam Bibi and others v, Sarsa Khan and others reported in PLD 1985 Supreme Court page-345 and subsequent reported case of Ghulam Hyder v. Muhammad Ayub reported in 2001 SCMR page-133 are of relevance here and the legal principle laid down in the above two Judgments besides other decisions can be summarized as follows:--
(i) that nature of the suit in so far as its cause of action is concerned is not changed by the amendment sought;
(ii) the complexion and character of the case should not be changed;
(iii) the amendments should not cause any embarrassment to the defendants either in seeking and making similar amendments in their Written Statements, and;
(iv) as a rule, the provision of Order VI Rule 17, of C.P.C., is liberally interpreted, which is not only limited to the plaint but also Written Statement, inter alia, as in the words of Hon'ble Supreme Court in the case of Mst. Ghulam A Bibi (supra)
"We, however, with respect, to the Judicial Committee, in view of the jurisprudence changes influenced by Islamic ethos in Pakistan are unable to agree that if a defendant is prevented from "starving a plaintiff out of his right" then the amendment should not be allowed. It has often been ruled in recently amendment should not be allowed. It has often been ruled in recently years by the superior Courts of Pakistan that the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice. "
10. If the proposed amendments are analyzed in view of the above legal position, I am inclined to hold that these proposed amendments if incorporated in the existing pleadings, the same shall not either change the cause of action or complexion of the case. With regard to objection of defendants' side about applicability of Order II, Rule 2 of C.P.C. And Article 144 of the Limitation Act, the same objection will survive even after the proposed amendments have been made.
Accordingly, C.M.A. No,1432 of 2015 is granted and the Plaintiffs are allowed to amend their Plaint by incorporating the proposed amendments mentioned in the above application within 10 (ten) days from the date of this order and copy whereof be supplied to the Defendants' side, enabling them to file an amended written statement, if at all they want to file one. It is further clarified and as already observed herein above, that even after amendment of the plaint, the legal objections as agitated by Defendants herein above, will be available to them.
11. Since the instant cause has reached the stage of evidence, therefore, if the situation so warrants, issues can be amended accordingly, followed by amended Affidavit-in-Evidence.
12. There is no order as to costs. Adjourned to a date in office.