Haji Bahawal Khan defendant-petitioner has felt aggrieved by the order of the learned Administrative Civil Judge, Bahawalnagar, dated 12-6-1969 whereby he dismissed his application under Order VI, rule 17, C. P. C. paying for an amendment of his written-statement in which he proposed to raise for the first time new pleas on grounds of limitation, adverse possession, non- joinder of parties and incorrect valuation of the suit for purposes of court-fee and jurisdiction.
2. The short background of the litigation giving rise to this Civil Revision is that one Ramzan was the original grantee of Rectangle No, 2, Block No, 570 in Chak No, 332/HR. He sought permission of the Collector to sell his occupancy rights in the grant in favour of Sultan predecessor-in-interest of the plaintiff-respondents by means of application dated 19-4-1945. The permission was granted on 25-11-1945 and in pursuance of that Sultan aforesaid deposited Government dues in respect of the land in question. It appears that after having applied for the permission of the Collector in the first instance Ramzan sought the cancellation of the earlier order dated 25-11-1945 passed on his first application but the order was not withdrawn. On 14-7-1946 Ramzan executed a sale-deed in favour of Sultan which was registered on 26-5-1947 in his absence under section 36 of the Registration Act. Earlier, however, in February 1947, Ramzan had executed another sale deed in favour of one Ata Ullah which was registered on 12-2-1947. The latter sold the land to one Muhammad Amin who in turn sold it to Haji Bahawal Khan defendant-petitioner. This led to litigation before the revenue authorities and ultimately the Commissioner, Bahawalpur vide his order dated 28-10-1958 directed that the mutation of the suit land may be sanctioned in favour of Sultan. Feeling aggrieved the present petitioner brought a suit before the Civil Judge seeking a declaration that the sale-deed executed in his favour by Muhammad Amin vendee on 11-3-1958 was a valid document. The suit was decreed by the trial Judge, but in appeal the learned District Judge vide his judgment dated 18-3-1963 reversed the decision and found that Ramzan having already transferred the suit-land in favour of Sultan by means of a sale-deed, which though registered subsequently, was prior in point of time, had lost all rights in the property and as such had nothing more to transfer.
3. Having succeeded in the previous round of litigation in which the validity of the sale in favour of Sultan, their predecessor-in-interest was upheld, on 2-6-1965, the plaintiff-respondents brought a suit for possession against Bahawal petitioner who was admittedly in actual physical possession of the suit-land. The mainstay of the plaintiff's claim was obviously the aforesaid judgment and decree of the District Judge dated 18-3-1963, which during the pendency of the present suit, was upheld by the High Court vide its judgment dated 19-3-1969 now under challenge in the Supreme Court, leave to appeal having not yet been granted. During the pendency of this appeal in the High Court, the proceedings in the instant case were stayed by the trial Judge sometime after the petitioner had filed his written-statement on 26-10-1965. After the disposal of the appeal in the earlier case by the High Court on 19-3-69 the learned trial Judge proceeded to frame issues on 29- 4-69, on the basis of the pleadings of the parties. About a couple of days thereafter on 3-5-1969, the defendant-petitioner brought an application under Order VI, rule 17 of the C. P. C. seeking permission of the Court for the amendment of the written-statement.
4. The application for amendment was opposed by the learned counsel for the plaintiff-respondent and after hearing the parties' counsel, the learned trial Judge vide his order dated 12-6-1969 dismissed the petitioner's application giving rise to the present Civil Revision.
5. Since, however, by means of the proposed amendment the petitioner sought to make drastic changes in his written-statement introducing new pleas of limitation, adverse possession, non- joinder of parties incorrect valuation of the suit etc., the learned trial Judge came to the conclusion that an altogether new case was sought to be set up in defence on the pretext of the proposed amendment which could not be allowed at such a late stage except on pain of serious prejudice to the case of the plaintiff-respondent to whom certain rights had already accrued, which could not be allowed to be defeated.
6. Learned counsel for the petitioner has confined himself only to the admissibility of the new plea of adverse possession and has not pressed the introduction of other pleas on the point of limitation, non-joinder of parties etc. It has been contended on the basis of Fazal Rehman v. Rahim Gut and others , Badridas Lalochand Mahesri Bani and another v. Raja Pratapgir Narsingirji and another and Muhammad Fakirullah Mia v. Bimalendra Nath Maitra and others that amendments in pleadings going to the rout of the matter may be allowed by the Court at any stage of the proceedings, including the appellate stage and further that having already denied the title of the plaintiff-respondent, it would be open to the respondent-petitioner to raise the alternative plea on the basis of adverse possession.
7. As against this, learned counsel for the plaintiff-respondent has urged that since in his earlier suit for declaration filed by the defendant-petitioner, he did not raise the plea of adverse possession, such an amendment would be hit by the provision contained in section 11, Explanation No, 4 of the C. P. C. based on the principle of constructive res judicata. Reliance is also placed on Naimat Bi ani others v. Jehal Khan and others wherein it was held by Yaqoob Ali Khan, J. (now Judge of the Supreme Court of Pakistan) that a plea of adverse possession not being implicit in the plea of exclusive ownership based on the validity of sale-deed could not be allowed to be raised at the appellate stage. It is argued that in point of fact under the pretext of raising an alternative plea, the petitioner is trying to set up an altogether new case for the first time and as such it should not be allowed as it would amount to the nullification of the rights which have already accrued in favour of the plaintiff-respondent.
8. It is well-settled that on the principle of constructive res judicata, as envisaged by Explanation1 2 3 4 No, 4 to section 11 of the C. P. C., if a certain plea is available to a party to a suit as a ground of attack or defence and has not been taken in the plaint or the written-statement in the previous suit, it could not be allowed to be taken in a subsequent suit between the same parties, subject of course to the conditions laid down in the aforesaid provision. It has not been denied by the learned counsel for the respondents that at the time when the petitioner brought his earlier suit on 28-11- 1958, which was one for declaration simpliciter, the plea of adverse possession was not open to the petitioner and as such could not be taken as one of the grounds in support of his claim in that suit.
9. The language of the provision contained in Order VI, rule 17, C. P. C , relating to the written- statement of pleadings, clearly indicates that in contradistinction to the corresponding provision contained in section 53 of the old Code, the scope of the discretionary powers, now conferred on the Court, has been considerably widened for the obvious reason of facilitating administration of substantial justice to the parties, and avoiding multiplicity of litigation subject of course to the limitation that it should not cause an injustice to the opposite-party as consistently held in a chain of judicial pronouncements. While conceding that the plea of adverse possession, now sought to be raised in defence, was not open to the petitioner as one of the basis of his claim in the earlier suit and as such would not be hit by the principle of constructive res judicata, learned counsel vehemently contends that the plea of adverse possession now sought to be raised by the petitioner in the proposed amendment is based on the possession of his predecessor-ininterest which has been belied by the High Court in its recent judgment dated 19-3-1969 delivered in R. S. A.
No, 45/63-BWP wherein it was held that the respondents had been in possession of the suit land since 1949, if not earlier. It is contended that in view of the above finding of the High Court, the petitioner's plea of adverse possession, if permitted to be raised, would be patently devoid of force.
9-A. The contention raised by the learned counsel relates essentially to the merits of the case which, in my view, should be left for determination by the trial Court alone on the basis of C the evidence adduced by the parties before it and should not be prematurely examined by this Court.
It shall, however, be open to the respondents to take full advantage of any finding given in their favour by any Court of competent jurisdiction on a relevant issue during previous proceedings but it cannot be denied that the plea of adverse possession is being sought to be raised for the first time and if permitted would in my opinion cause no prejudice, much less any injustice to the respondents. It is well-settled that the provision contained in Order VI, rule 17, D C. P. C. is to be liberally construed and the plea of adverse possession taken as a defence in a suit for possession is not something unusual or extraordinary which could be construed as amounting to setting-up a new case.
10. In my view the authority relied upon by the learned counsel for the petitioner, namely, Fazal Rehman v. Rahim Gul and others would be attracted with full force to the facts and circumstances of the instant case. The following observation of his. Lordship may be reproduced with advantage : -- "The plea of adverse possession is not inconsistent with the plea of ownership, as both are based on the plea of title, which the plaintiffs claim . . . . . The real purpose of allowing amendment is to secure proper administration of justice for the purpose of determining the real question in controversy between the parties and normally leave to amend will be granted so as to enable the real question in issue between parties to be raised in the pleadings, where amendment will not occasion injury to the opposite-party."
The similar effect is Muhammad Fakirullah Mia v. Bimalendra Nath Maitha and others. In this case after close of the evidence the plaintiffs applied for amendment of the plaint which was confined only to a change of material date regarding his dis-possession so as to bring his case within limitation. The prayer was rejected by the Munsif who dismissed his suit as barred by limitation. In appeal, the lower appellate Court allowed the plaintiffs to amend the date of dispossession and thereafter allowed the appeal and decreed the suit. Thy contentions raised in second appeal before the High Court were that the grant of the prayer for amendment was not justified, and that the suit was barred by limitation. After reviewing important case-law, the learned Judge came to the conclusion that the first appellate Court was justified in allowing the amendment in the circumstances of the case. This was certainly an extreme case in which important rights had already accrued to the defendants which were taken away by the amendment so allowed and yet the order was justified on the basis of Charan Das and others v. Amir Khan and others wherein it was observed by their Lordships as follows :- "That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example, Muhammad Zahoor Ali Khan v. Mst. Thakurani Root Koar 11 M I A 4671), where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one."
This view was adopted in preference to another Privy Council authority Ma Shwe Mya v. Maung Mo Huaung wherein their Lordships of the Judicial Committee expressed what appears to be a different view obtaining in normal circumstances. It was observed: "The first question that arises is whether or not that leave to amend was properly given in accordance with the rules by which that leave must necessarily be regulated. All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they 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, not to change, by means of amendment, the subject-matter of the suits."
11. In the instant case, I have not been able to agree with the finding of the learned trial Judge that the permission to grant amendment at this stage would amount to the frustration of the rights of the respondents which had already accrued to them.
12.In Maulvi Fait Bakhsh v. Syed Shadi Shah an amendment was sought to be raised by the plaintiff who had brought a suit for possession on the basis of title simpliciter. Having failed to take the alternative plea of perfection of title by adverse possession in the plaint, he sought permission to raise it for the first time in appeal but it was negatived by the District Judge. In second appeal before the High Court arguments were confined only to adverse possession though that question did not find mention in the grounds of appeal. It was in these circumstances, that the plaintiff was precluded from raising the plea of adverse possession at that stage. In this context Muhammad Yaqoob Ali Khan, J. (now Judge of the Supreme Court of Pakistan) observed as follows :- "No doubt declaration of title may be given on proof of 12 years' adverse possession but in accordance with a Division Bench authority of this Court Shrimoni Gurdwara Parbandhak Committee and another v. Prem Das and another I L R 13 Lah. 677 such a declaration cannot be given unless a title based upon adverse posssession has been distinctly set up in the plaint and raised in the issues."
But obviously this authority proceeds on distinguishable facts and does not advance the case of the respondents.
13. Having considered all the relevant circumstances of the case, I am convinced that there should be no serious objection to the grant of the petitioner's application for amending their written-statement which shall now be confined to the raising of the plea of adverse possession alone, other pleas having already been dropped by the learned counsel. Consequently, the petition is allowed, subject to the payment of Rs, 100 as costs.5 6 7 PLD 1965 Pesh. 223 AIR 1940 Nag. 8 PLD 1961 Dacca 254 PLD 1956 Lah. 282 AIR 1921 P C 50 I L R 48 Cal. 832 (P C) PLD 1956 Lah. 282