' Through instant petition, the petitioner assails the vires of order dated 30th of January, 2014, whereby the learned Additional District Judge, Lahore, while dismissing review petition filed by the petitioner affirmed the order dated 20th of September, 2013.
2. The facts in precision necessary for adjudication of instant petition are that Respondents No, 3 to 7 instituted a suit for permanent injunction against erstwhile Lahore Cantt. Co-operative Housing Society, Lahore, which is succeeded by the petitioner i,e, Defence Housing Authority, Lahore. During the pendency of suit an application was filed by the petitioner under Order VI Rule 17 of The Code of Civil Procedure (V of 1908) seeking amendment in the written statement. The application was resisted by the respondent which was ultimately dismissed vide order dated 15th of July, 2013. The petitioner, feeling dissatisfied from the said order filed a revision petition before the learned Additional District Judge, Lahore which was also dismissed vide order dated 20th of September, 2013. The petitioner then preferred a review petition for recall of said order but same was also dismissed vide order dated 30th of January, 2014, hence this petition.
3. Learned counsel for the petitioner submitted that proposed amendments were declined on extraneous grounds. He added that order dated 15th of July, 2013 rejecting the application for amendment is not tenable. Learned counsel contended that proposed amendments were necessary, however, both the Courts below have declined the same in an illegal 4nd unlawful manner. It is contended that learned Additional District Judge, while adjudicating upon the revision petition travelled beyond its jurisdiction. Learned counsel argued that impugned order dated 30th of January, 2014 is not tenable under the law.
4. Conversely, learned counsel for the Respondents No, 3 to 7 defended the impugned order and submitted that the petitioner by way of proposed amendments wants to introduce a distinct plea which is not permissible under the law.
5. I have heard learned counsels for both the sides and also perused the record.
6. Before commenting upon the merits of the case, it would be advantageous to first examine the proposed amendments mentioned in Para No, 4 of the application which reads as under: "Moreover, land measuring 56 Kanals comprising of Khasra Nos.5034/1442 (1 Kanal 8 Marlas), 5036/1442 (8 Kanals 12 Marlas), 5470/1443 (19 Kanals 18 Marlas) and 1444 (26 Kanals 2 Marlas) situated in Mauza Amer Sidhu (which land included part of the suit land) had also been bona fide purchased by the defendant Society (now Authority) even before the institution of the suit vide conveyance deed No, 10864 dated 6-11-1994 where after Mutation (No, 29921) in the name of the defendant was also sanctioned on 30-11-1994."
' The amendments in the pleadings can be sought in terms of Order VI Rule 17 of the Code of Civil Procedure (V of 1908) which is reproduced below: "17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or 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."
Bare perusal of the above referred provision of law postulates that any of the party to the lis can seek amendment of the pleadings at any stage of the proceedings if such amendments are necessary for the purpose of determining the real question in controversy between the parties. Law is very liberal in this context and Courts always show leniency, while dealing with the applications for amendments in the pleadings. The proposed amendments can only be refused in rare and exceptional circumstances when it is established that same have been introduced in order to change the complexion of the suit or to introduce an entirely different case.
7. The scope of Order VI Rule 17 of The Code of Civil Procedure (V of 1908) has very elaborately been discussed by the Hon'ble Supreme Court of Pakistan in the case of "Met. Ghulam Bibi and others versus Sarsa Khan and others" (PLD 1985 Supreme Court 345). The relevant extract from the judgment supra is reproduced below:.
"After bearing both the learned counsel for some time we agree with the observation made by the learned Judge in the High Court that "generally delay alone in applying for amendment or expiry of period of limitation or increase in Court-fee and change of jurisdiction is not a ground for refusing amendment in the plaint', the judgments cited by the learned counsel for the appellants depending upon the circumstances of each of them support the said view. However, with respect, we have not been able to agree with the learned Judge that notwithstanding the legal position, "in the circumstances of the present case there is no merit in the prayer to allow the amendment for the reason that the appellants were negligent or that the application for amendment was not made bonafide".
' No doubt an objection was raised from the respondent-side that the suit was not maintainable in the present form and an issue was framed in that behalf. But it was ignored that the said issue was decided by the' learned trial Court in favour of the appellants on the finding that the so- called agreement to exchange was, in so far as its contents disclose; in reality a contract of exchange. Therefore, the plaintiffs (the present appellants) could not be held to have acted in a mala fide manner in not seeking the amendment before the trial Court. In the same context the learned counsel for the appellants is right in pointing out that it was the respondent-side which filed the appeal before the District Court. If the appellants would have filed before the trial Court on this issue and they had filed the appeal before the District Court a question could have arisen as to why they did not at least ask for the amendment of the plaint as an alternative course of action. But here it was a different situation. Be that as it may, the learned Judge himself observed and rightly, so that 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 word "proceedings" has been interpreted by this Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose, as including the appellate stage and that too up to the Supreme Court.
' The foregoing interpretation is also in accord with the mandatory language used in Rule 17 to the effect that "all ,such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy. "Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts.
In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment.
' What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of Rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. Instead of declaration etc. And secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualizes is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualizes the award of adequate compensation: in that, the amendment has to be allowed "in such manner and on such terms as may be just".
8. While examining the legality and propriety of the impugned orders, it is observed that the learned Additional District Judge, while dealing with the revision petition filed by the petitioner against the order dated 15th of July, 2013 have completely failed to advert to the issue involved in the matter. The learned Additional District Judge has proceeded on entirely different premises, while dismissing the revision petition filed by the petitioners by way of order dated 20th of September, 2013. Perusal of said order reveals that it runs on an entirely different pretext. The learned Additional District Judge was completely oblivion of the mandate of Order VI Rule 17 of The Code of Civil. Procedure (V of 1908), while passing the said order and even no reference was made to the relevant provision of law, while dealing the issue. Though a review petition was filed by the petitioner but 'same was also dismissed vide order dated 30th of January, 2014 in a manner which is alien to law without even discussing the parameters for recall of order. The modus operandi adopted by the learned Additional District Judge is not in conformity with law. The impugned orders lack lawful reasoning and application of judicious mind. The learned Additional District Judge was supposed to dilate upon the issue of amendment as solicited by the petitioner by way of application which was dismissed vide order dated 15' of July, 2013 by the learned Civil Judge.
Learned counsel for the Respondents No, 3 to 7 is even not in a position to justify mode adopted by the learned Additional District Judge, while passing the impugned orders dated 30th of January, 2014 and 20' of September, 2013.
8A. In view of above discussion, I am inclined to allow this petition, consequently orders dated 30th of January, 2014 and 20th of September, 2013 passed by the learned Additional District Judge are set aside, as a result thereof, the matter is remanded back to learned District Judge, Lahore with the observations that revision petition filed by the petitioner shall be deemed to be pending, who shall either hear the same by his own or entrust it to any other Court of competent jurisdiction for its decision afresh on the merits in view of observations made hereinabove, after hearing both the sides. Office is directed to transmit the copy of this judgment to the learned District Judge, Lahore for its compliance.