Faisal Arab, J.---The petitioners filed a suit seeking a declaration against the respondents that the execution of the wills dated 10.06.1992 and 25.09.1998 are the outcome of coercion and undue influence exercised by Mst. Shamim Akhtar on her husband Late Ghulam Jillani, the 'Sajjada Nasheeri of Darbar Hazrat Sultan Baho whereby their minor son Faller Sultan was nominated as his successor.
2. During the pendency of the suit, the petitioners moved en application under Order VI Rule 17 CPC seeking amendment, in the plaint by adding the plea that the disputed wills were forged and do not bear the signatures of Late Ghulam Jillani. Considering this application to be contrary to the case set up in the plaint, the same was rejected by the Senior Civil Judge on 21.09.2013. All proceeding., upto High Court challenging rejection of said application also failed. The main reason that prevailed with the learned Judge of the High Court in rejecting the writ petition of the petitioners vide impugned order dated 08.06.2017 was that adding the plea of forgery with coercion and undue influence would change the entire complexion of the suit. It was further held that the plea based on the proposed amendment could have been easily taken at the time of filing of the suit and there was no justification to wait for such a long period of time to come up with a new plea. Aggrieved by such decision, the petitioners have filed the present petition seeking leave to appeal.
3. Learned counsel for the petitioners argued that the amendment sought by the petitioners would not change the complexion of the suit rather it would facilitate the Court to reach a just decision and the refusal to grant the proposed amendment on the ground of causing delay in the proceedings was not justified. In support of her case, she mainly relied upon the cases of Budho vs, Ghulam Shah (PLD 1963 SC 553), Abdul Rashid vs Muhammad Tufail (PLD 1992 SC 180), Ghulam Bibi vs. Sarsa Khan (PLD 1985 SC 345) and Nazir Hussain Rizvi vs. Zahoor Ahmad (PLJ 2005 SC 1332).
4. Learned counsel for Respondent No, 3 in reply to the petitioners' counsel's argument submitted that the proposed amendment would change the entire complexion of the suit as the petitioners in their plaint had taken the stance that the disputed wills are the result of coercion and undue influence, thereby impliedly admitting that the same were executed by Late Ghulam Jillani with the only caveat that the same were procured by exercising coeroion and undue influence. Therefore, now denying the very execution of the wills on the basis of forgery amounts to introducing an altogether new plea that is contradictory to the original pleas and thus all the Courts below rightly rejected the petitioners' application. Reliance was placed on the cases of Secretary to Government vs. Abdul Kafil (PLD 1978 SC 242), Imam Hussain vs. Sher Ali Shah (1994 SCM R 2292), Muhammad Hussain vs. Sani Husain (2000 SCM R 391), Ghulam Haider vs. Muhammad Ayub (2001 SCM R 133), Muhammad Arain vs. Zahid Mehmood (2005 CLD 982), Abid Ullah Malik vs. Additional District Judge (PLD 2013 SC 209), Muhammad Ali vs. Dabir Ali (2016 SCM R 2164), B.K. Narayana vs. Parameswa ran Pillai (2000) 1 Supreme Court Cases 712) & Heeralal vs. Kalyan Mal (AIR 1998 SC 618).
5. As regards to the findings in the impugned judgment that the proposed amendment has been sought belatedly, we have noted that in many instances a party interested in seeking delay in the proceedings move such applications, and use it as a tool to delay the conclusion of the trial.
However, in the present case it is difficult to impute such an intention as the petitioners are very much interested in seeking the declaration in the suit at the earliest for the reason that the delay in the proceedings would not serve their cause. The office of the Sajjada Nasheen is already being enjoyed by the other side. So in seeking the proposed amendment, the intention to delay the proceedings cannot be attributed to the petitioners.
6. As to the other ground that through the proposed amendment, a contradictory plea is being introduced which would change the entire complexion of the case, we are of the view that the execution of the disputed wills was challenged basically on the ground that Late Ghulam Jillani on account of his mental and physical health was not in a position to voluntarily execute such wills in a proper frame of mind. Therefore, keeping this plea in sight the wills were considered by the petitioners to be an outcome of undue influence and coercion. By taking such plea, it cannot be said that the petitioners also had first-hand knowledge of the execution of the wills by Late Ghulam Jillani himself. It was only when the claim of the respondents surfaced on the basis of the disputed wills, the plea of undue influence and coercion was taken keeping in view his bad state of health but it can also give rise to the belief that even in a bad state of health (which is to be proved in evidence) Late Ghulam Jillani may not have executed the wills himself and hence could be the result of forgery. So through the proposed amendment, all that the petitioners are seeking is verification of the signatures of Late Ghulam Jillani on the disputed wills. Therefore; we do not consider it at all to be a case of contradictory or mutually destructive pleas, which is being introduced through the proposed amendment. At best, it could be a plea in the alternative that can legitimately be taken in the circumstances of the case. When a plea in the alternative can naturally arise and can coexist with the main plea, which was not taken in the plaint at the time of filing of the suit then such a plea can be introduced by seeking amendment in the pleadings. To hold this view, we are fortified by the judgment of this Court passed in the case of Nazir Hussain Rizvi vs. Zahoor Ahmad (PLJ :2005 SC 1332) wherein it was held as under:- "6. There is no cavil with the proposition that the proposed, amendment can neither change the complexion of the suit nor introduced a new cause of action. "No amendment will be allowed where its effect would be to convert the character of the suit. "(Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja v. Jeliangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. m. v. Titisee PLD 1993 SC 88 and moreso 'the fundamental character of the suit including the subject-matter and cause of action cannot be allowed to be substituted. " (Ghulam Bibi v. Sarsa Khan, PLD 1985 SC 345, Ghulab v. Fazal Ilahi PLD 1955 Lah. 26). It is, however, to be kept in view that subject to certain exceptions "even alternative and inconsistent pleas may be allowed to be raised by way of amendment." (Ghulamali v. Pakistan PLD 1960 Kar. 581, Alauddin v. Central Exchange Bank Limited (PLD 1960 Lah. 446) "or a new ground of claim can be introduced because merely introduction of fresh matter cannot alter the nature of the suit and leave ought not be refused in such cases."
(Muhammad Essa v. Hasseena Begum 1989 SCMR 476). A line of distinction is to be drawn between 'an alternative case' and `an inconsistent case' which are neither synonymous nor interchangeable. A similar proposition; was examined, in case Budho vs. Ghulam Shah (PLD 1963 SC 553) wherein it was held that, no two facts can be said to he inconsistent if both could have happened and the test of inconsistent is that a plaint which contains both cannot be verified as true but a party can put forward more than one source of his right or defence in which case he is pleading in the alternative. The judicial consensus seems to be that an alternative or inconsistent plea can be raised but contradictory and mutually destructive pleas cannot be taken."
7. The case law cited by the learned counsel for the respondents in the facts and circumstances of this case is distinguishable as all that we have held in this case is that where a plea in the alternative can be taken in the suit; then a plea can also be introduced by seeking amendment to the plaint, in case the circumstances so permit.
8. For what has been discussed above, this petition is converted into an appeal and allowed, the impugned judgment is set aside and the application of the petitioners for seeking amendment in the plaint is allowed.