CH. MUHAMMAD MASOOD JAHANGIR, J.---By filing the instant constitutional petition, the petitioner has challenged the orders dated 15.11.2011 and 29.5.2012 passed by the learned trial court as well as learned lower revisional court, by virtue of which, application for amendment of plaint filed by the petitioner/ plaintiff was concurrently dismissed.
2. The precise facts of the case are that the petitioner and respondent No.1 are real sister and brother inter se. Respondent No.1 regarding property of present petitioner/plaintiff filed a suit for declaration before the learned trial court on 24.6.1970 which was decreed on 23.7.1970. The same was assailed by the petitioner/plaintiff by filing a declaratory suit. At one stage, the said suit filed by the petitioner was decreed vide judgment and decree dated 17.9.1974. However, on an application under Section 12(2), C.P.C. filed by respondent No.1 the said judgment and decree passed in favour of petitioner/ plaintiff was set aside by the learned trial court vide judgment and decree dated 15.10.2010, which attained finality when the revision petition filed by the petitioner/plaintiff was also dismissed on 1.3.2011. The suit filed by the petitioner/ plaintiff for challenging the validity of judgment and decree dated 23.7.1970 was revived by the learned trial court in the year 2011 and on its revival, the petitioner moved an application under Order VI, Rule 17, C.P.C. for amendment of the plaint, which was concurrently dismissed by both the learned courts below vide orders referred in para 1 ante, hence this writ petition.
3. Learned counsel for the petitioner has argued that the impugned orders dated 15.11.2011 and 29.5.2012 passed by both the learned courts below are against law and facts of the case; that both the learned courts below failed to consider the facts and circumstances of the case while dismissing the application for amendment of plaint filed by the petitioner; that the amendment sought by the petitioner is of formal nature and no complexion of the case would have been changed due to amendment sought by the petitioner and that the impugned orders passed by both the learned courts below being contrary to law and dictum laid down by the apex Court are liable to be set aside while allowing the instant writ petition.
4.Conversely, learned counsel for the respondent No.1 defendant has refuted the arguments advanced by the learned counsel for the petitioner and also prayed for the dismissal of the instant writ petition while relying upon the cases reported as "Khair Muhammad and others v. Nawab Bibi and others" (2008 SCM R 515), "Mst. Imam Hussain v. Sher Ali Shah and others" (1994 SCM R 2293), "Sher Afzal v. Abdul Malik and 2 others" (2002 M LD 199), "m.v. Kaptan Yousuf Kalkavan v. Semco Salvage (Pvt.) Ltd." (1992 CLC 143) and "Muhammad Shall and others v. Abdul Hameed and others"
(2008 SCM R 654).
5.Arguments heard. Record perused.
6.Admittedly the parties are real sister and brother inter se and respondent No. 1/brother filed a suit for declaration regarding the property owned by the present petitioner before the learned trial court, which was admittedly decreed on the statement of father of the parties, but neither the petitioner herself appeared before the said court nor she got recorded any statement during the proceedings of the suit. During the course of arguments in response to a query of this court, learned counsel for respondent No.1 has furnished a copy of registered Special Power of Attorney executed in favour of father of the parties by the petitioner, which was attested on 13.5.1970 by the Sub-Registrar, Toba Tek Singh, a perusal whereof reveals that the petitioner/plaintiff had never authorized her father to appear before the court or make any statement on her behalf in the suit filed by the respondent/defendant. By moving an application for amendment of plaint, the petitioner-plaintiff intend to introduce her version regarding the authority of her father on whose statement the suit against the petitioner/plaintiff was decreed. The petitioner/plaintiff has not proposed any amendment, which would have changed the complexion or nature of the suit.
7.The provision of Order VI, Rule 17, C.P.C. has to keep in view the interest of justice and to allow case to run on correct lines for decisions of real controversy. The fact remains that the amendment in pleadings may be allowed at any stage of the proceedings to secure and serve ultimate ends of justice. The procedural provisions have to be invoked and interpreted with the aforesaid ends in view and must be subordinated to the object of dispensation of justice for securing which the entire judicial system has been evolved and is functioning. Therefore, discretion that vests in the Court, in the sphere in question, has to be liberally exercised, of course, without trampling legitimate interests of the other side. The provisions of Order VI, Rule 17, C.P.C. cast duty upon the Court keeping in view the interest of justice and to allow the case to run on correct lines for decision of real controversy and an amendment of plaint is almost the right of a party when it relates to the cause of action on which the suit is based. The Court is required by law not only to allow the application for amendment made by a party in that behalf, but is also bound to direct the litigants to amend their pleadings for the sake of dispensation of justice. This provision is, however, subject to the condition that the cause of action does not change the main substance and nature of the suit.
8. Both the learned courts below mainly dismissed the application of the petitioner/plaintiff on the sole ground that the same was filed at a belated stage. The chequered history of the case has negated the said conclusion of the learned courts below. No doubt, to challenge the judgment and decree dated 23.7.1970 the petitioner/ plaintiff had filed a declaratory suit on 24.6.1974 before the learned trial court and the same was decreed on 17.9.1974, but the matter was again re-opened when an application under section 12(2), C.P.C. filed by respondent No.1 on 28.6.2006 after having remained pending before various courts was ultimately allowed and the suit, was revived in the year 2011. It means that during the interregnum period i.e. 17.9.1974 to 2011 the suit was not pending before any Court and on its revival in the year 2011, the petitioner/plaintiff moved the instant application on 9.9.2011 before the same court for amendment of the plaint. Even otherwise, the delay alone in submission of the application under Order VI Rule 17, C.P.C. is no ground to disallow the same. The principle of granting amendment in the pleadings has been laid down in the case reported as "Mst. Ghulam Nabi v. Sarsa Khan" (PLD 1985 Supreme Court 345), wherein, it has been concluded that while considering the request of a party for amendment of the pleadings, technicalities should be avoided as rules of procedure are meant to advance justice and mere delay could not be made basis for dismissal of such application. It has been further held therein that all rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that those 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 yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
9. As observed supra, since the main substance of the suit and its nature will remain the same in spite of the proposed amendment carried out in the said application, the same is permissible and necessary to avoid multiplicity of actions between the parties and to finally and effectively adjudicate upon the disputes between the parties. The case-law cited at the bar by the learned counsel for the respondent/defendant runs on different footings and is not applicable to the facts and circumstances of the instant case. The contention of learned counsel for respondent No.1 that concurrent findings of fact cannot be questioned in writ jurisdiction is misconceived and without any merits. In this respect, safe reliance can be placed on Muhammad Anwar and others v. Mst.
Ilyas Begum and others (PLD 2013 SC 255) wherein it is held that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. This is the mandate of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and we are not persuaded if there is any specific bar on the High Court that while exercising its authority in term of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, no interference can be made in the revisional orders. So, this court can decide in which cases the interference is warranted. It will be enough to say that the lower courts must adhere to the agonies of general public which are being caused by such like order as mentioned supra. The proceedings and the orders of the Judiciary should not be horn of the sanction of social justice, law and morality. It must be added that from the creation of Judicial System and especially now a days after the restoration of our Higher Judiciary, the courts of law in our society have been strengthened much lot and when such a pedestal is available to the Judiciary, then learned courts below are bound to pay the attention to dispense with the justice after applying judicious mind, because it is the basic mandate of law that justice should be administered. Thus, it is obvious and clear that no court in the country has jurisdiction to decide about the rights of the parties wrongly or in sheer violation of law and the courts have no exception to the said rule. Such like orders are meant to prolong the litigation which cannot be recommended by any court of law.
10. From the discussion above, I have no hesitation in my mind to observe that both the courts below failed to analyse the facts and law on the subject and committed grave irregularity and illegality while passing the impugned order/judgment, which are amenable by this court in writ jurisdiction. Consequently, the instant writ petition is accepted, the impugned order/ judgment passed by both the learned courts below are hereby set aside and the application for amendment of plaint filed by the petitioner/plaintiff is accepted subject to payment of Rs.25,000/- as cost of the amendment. However, after such amendment of the plaint, the defendant/ respondent No.1 will also, if he so requests, be allowed a proper opportunity to amend his written statement.