Through the instant constitutional petition, the petitioner has called into questi on the order dated 15.02.2018 passed by the learned trial Court and order dated 07.06.2018 passed by the learned Revisional Court, whereby application of the petitioner under Order VI, Rule 17 of the Code of Civil Procedure, 1908, seeking amendment in the written statement, filed in a suit for declaration with consequential relief, instituted by the respondent No.3 and appeal thereof were dismissed, respectively .
2. Learned counsel for the petitioner has argued that the impugned orders are against law and facts of the case; both the Courts have erred in law by holding that through proposed amendment the complexion and nature of the suit would change; that through the proposed amendment petitioner wants to elaborate the fact of sale and mode through which the petitioner purchased the disputed house and the petitioner already disclosed the factum of entering into agreement with the father of the respondents No.3 to 10 in his written statement and also relied upon the document while submitting list of reliance under Order VII, Rule 14 of the CPC; that it is well settled law that in order to resolve the real controversy between the parties and to advance the ends of justice, even alternative plea could be allowed or new ground could be allowed. The impugned orders have been passed without application of independent judicious mind; the same are based on sheer misreading and non-reading as well as mis- interpretation of facts and record. Adds that both the learned Courts below have failed to exercise vested jurisdiction as per mandate of law; hence, the impugned orders being not sustainable in the eye of law may be set aside by allowing the constitutional petitio n in hand and application under Order VI, Rule 17 of the CPC seeking amendment in the written statement may be accepted. Relies on Hokum Dad and 4 others v. Mst. Roqiyya Begum and 5 others (1996 CLC 1920 ), Mubarik Ali Shah and another v. Nazir Ahmad Shah and 10 others (2000 CLC 892 Lahore) and C.A. W aheed v . Aftab Ahmad Mian and another (PLD 2006 Lahore 68 ).
3. Naysaying the above submissions, learned counsel for the respondents No.3 to 10 has supported the impugned orders and has prayed for dismissal of the constitutional petition in hand.
4. Heard.
5. It is settled principle of law, by now, that an alternative or inconsistent plea can be taken but contradictory and mutually destructive pleas cannot be raise d. In this regard this Court is guided by the recent esteemed judgment of the Hon'ble Supreme Court of Pakistan reported as HAJI SULTAN ABDUL MAJEED (DECD) through Mehboob Sultan and Habib Sultan and others v. Mst. SHAMIM AKHT AR (DECD) through Mah Jabeen and others (2018 SCMR 82 ) wherein it has invariably been held: - 'When a plea in the alternative can natura lly arise and can co-exist 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 v.
Zahoor Ahmad (PLD 2005 SC 787) 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 introduce 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. Jahangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. m.v. Titisee PLD 1993 SC 88 and more so 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 Illahi 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." (Ghulam Ali 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 v. Ghulam Shah (PLD 1963 SC 553) wherein it, was held that no two facts can be said to be inconsistent if both could have happened and the test of inconsistency is that a plain 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."
6. Now, when we consider and look on the proposed amendment, on the said ratio, and read the same with the actual written statement, it appears that the petitioner has already taken the stance he purchased the disputed property from the father of the respondents No.3 to 10 on 13.04.2000 through a written agreement and the agreement dated 13.04.2000 has also been relied upon while submitting list of reliance under Order VII, Rule 14 of the CPC. Now through proposed amen dment he only wants to elaborate the said fact in detail, which is not destructive or contradictory to the already taken plea and even the same is not inconsistent or alternative plea, rather the fact already mentioned in the written statement, as stated above, has been elaborated in the proposed amendment. As such, the learned Courts below have failed to appreciate the facts in true perspective while passing the impugned orders.
7. In addition to the above, mere delay in filing such like applications is not a good ground for refusal of the same, rather the essence of the ratio of above said celebrated judgment is that the proposed amendment may not introduce a new and changed case/claim and it would not likely change the nature, complexion and cause of action of the suit, but in the present case, as has been stated above, the position is otherwise. Allowing or refusing to allow amendment of pleadings is an act, which goes to the root of the case, because the parties cannot lead evidence beyond their pleadings and if the provisions of Order VI, Rule 17 of the Code of Civil Procedure, 1908 are not construed and exercised liberally , it would jeopardize case of the parties; in this regard reliance is placed on LAHORE DEVELOPMENT AUTHORITY and others v. SULTAN AHMED and another (2007 SCMR 1682 ), wherein it has been held:- '6. Allowing or refusing to allow amendment of pleadings is an act, which hits at the root of the attack or defence of a party , as the case may be. The parties cannot lead evidence beyond their pleadings and hence it affects the production of evidence as well. Ultimately , the case of a party , refused amendment in genuine cases, is most likely to be seriously jeopardized. Thus, the question of amendment in hand was not of such an interlocutory nature, which could subsequently , be rectified at the time of final decision of case. While declining to interfere on such grounds, the learned High Court has fallen into material irregularity .'
8. So far as the arguments that the proposed amendments are based on mala fide intention, I am not in agreement with the learned counsel for the respondent on the same, rather as has been discussed above, the proposed amendment is nothing but an elaboratio n of the already pleaded facts; it does not change the complexion and nature. Providing open ground to both the parties to play on the same is the myth of law, which is based on principle of audi alteram partem .
9. For the foregoing reasons, while placing reliance on the judgment supra as well as Hokum Dad and 4 others v.
Mst. Roqiyya Begum and 5 others (1996 CLC 1920 ), Mubarik Ali Shah and another v. Nazir Ahmad Shah and 10 others (2000 CLC 892-Lahore) and C.A. Waheed v. Aftab Ahmad Mian and another (PLD 2006 Lahore 68), the constitutional petition in hand is allowed, impugned orders are set aside, conseque nt whereof the application under Order VI, Rule 17 of the CPC, filed by the petitioner is accepted. No order as to the costs.