RASAAL HASAN SYED, J.---- This Constitutional petition arises from order dated 03.1.2019 and 20.6.2019 of the learned courts below whereby application under Order VI, Rule 17, C.P.C., seeking amendment in plaint waS allowed and the revision petition filed thereagainst was dismissed.
2. Respondents Nos.1 to 3 filed a suit for declaration, cancellation of documents/sale deeds with permanent injunction, against the petitioner , challenging the sale deeds and mutation on the ground of fraud, forgery and misrepresentation. During the pendency of the suit an application under Order VI, Rule 17, C.P.C. was filed for certain amendments in the plaint and also its prayer / clause. The application was allowed by the learned Civil Judge vide order dated 3.1.2019. Petitioner challenged the order in revision which was dismissed by the learned Addl. District Judge by order dated 20.6.2019. In the instant revision petition the two orders have been assailed.
3. Learned counsel for the petitioner argued that the orders of the courts below are legally untenable; the provisions of Order VI, Rule 17, C.P.C. were misconstrued and misapplied; the proposed amendment had the effect of changing the nature of the suit and was impermissible. The courts below incorrectly deemed the omission of word "possession" as an innocuous and incorrectly ignored that the proposed amendment to insert the relief of "possession" would change the nature of case and as such was impermissible. Lastly , it was argued that the respondents misused the process of law and that in the peculiar circumstances of the case, the amendment should not have been permitted.
4. On deeper consideration of facts, submissions made by learned counsel and scrutiny of copy of the record of suit annexed with the writ petition, it is manifest that respondents Nos. 1 to 3 instituted a suit for declaration, cancellation and permanent injunction. It was their case that land measuring 46 kanals, 15 marlas and 13 sq ft, subject-matter of suit, belonged to the father of respondents Nos.1 to 3 and Muhammad Akram/respondent No. 4 [represented herein by respondents Nos. 4(i) to 4(v)] and that in his lifetime, i.e. in the year 1996, the father of respondents Nos.1 to 3 gifted out his property which was duly mutated in the revenue record vide Mutation No. 40022 dated 12.11.2002 and that the suit for declaration on the basis of the gift was filed in the lifetime of the deceased father of respondents Nos. 1 to 3 wherein he entered appearance, recorded his statement conceded the plaint, in result, the suit was decreed on 15.4.1996. It was asserted that the respondents Nos. 1 to 3 and late Muhammad Akram, predecessor of respondents Nos. 4(i) to 4(v), were the joint-ow ners of the property and that in 2014, Muhammad Akram went to Saudi Arabia for performing of Hajj, where he died on 03.10.2014. He was issueless while his wife had already died in his lifetime and that on his demise his share in the property devolved upon respondents Nos. 1 to 3 and Muhammad Akram deceased [predecessor of respondents Nos. 4(i) to 4(v)]. It was claimed that the petitioner (who was defendant No. 1 while the spouse was defendant No.1 in the connected suit) by fraud, fabricated and forged fictitious document, which was registered as sale deed No. 7974, Bahi No.1, Jild No. 2327 dated 03.10.2013, mutation No. 57563 dated 07.11.2013; sale deed No.7847 dated 30.9.2013 mutation No. 57502 dated 29.10.2013; sale deed- document No. 7848 dated 29.10.2013; sale deed No. 7846 dated 30.9.2013, sale deed No. 7818 dated 28.9.2013 and sale deed No.7817 dated 28.9.2013 and they also fraudulently secured mutations on the basis thereof and that all those documents were illegal, fictitious and did not bear the thumb-impression of deceased defendant No.2 Muhammad Akram (respondent No. 4) and that on the face of the documents the same suffer from numerous deficiencies, inaccuracies and contradictions which proved the documents to be forged and fraudulent. Based on all these allegations, respondents Nos. 1 to 3 claimed a declaration and cancellation of all those documents and prayed that the same be declared to be of no legal effect on the rights of respondents Nos. 1 to 3 and that all the transactions, based on those documents be also declared to be illegal and cancelled. A decree for permanent injunction to restrain the petitioner from further alienation of the property or for using the disputed documents or from changing the structure was also claimed. Petitioner duly filed contesting written statement. During the proceedings of the suit, respondents Nos:l to 3 (plaintif fs in the suit) filed an application under Order VI, Rule 17, C.P.C. for amendment in the plaint. The proposed amendment was incorporated in para 2 of the application. The respondents sought amendment in the prayer clause so as to include the word "recovery of possession" betwe en the words "declaration" and "cancellat ion". At the end of para 4 of the plaint, the proposed amendment was that the disputed structure was constructed much before the registration of the alleged sale deed and the area mentioned in the sale deed was vacant plot and was of different khasra numbers as mentioned in the deed and without any partition or demarcation. In para 6 of the plaint, the word "specific" was to be inserted after the word "no". In para 6 of the plaint, the respondent wanted to further insert that the petitioner maneuvered and prepared the so called registered sale deed of vacant plot when the place he and his brother occupied was constructed two rooms, etc. and was on different khasra numbers. In para 8 the word "same" was to be inserted after the word 'the' while in para 8 amendment was proposed whereby the respondent wanted to insert that the constructed covered area was stealthily occupied by the petitioner without authority .
Learned Civil Judge, after considering the viewpoints of both sides, allowed the amendment which order was affirmed in revision by the learned Addl. District Judge.
5. Provisions of Order VI, Rule 17, C.P.C. have remained subject-matter of consideration and interpretation in various pronouncements of the superior courts and the consistent rule approved therein is that the court shall be liberal in allowing amendment in pleading s which are necessary to determine the matter in issue. It has also been ruled that no suit can be dismissed for the simple reason that a portion of relief to which the party was entitled in the circumstances was not claimed in the plaint. To consider the requirement for amendment, the court has to examine if the amendment intended to substitute a cause of action or change the very cause of action on the basis of which the lis was instituted. In "Mst. Ghulam Bibi and others v. Sarsa Khan and others" (PLD 1985 SC 345) it was observed that the proper place for procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights and all technicalities need to be avoid ed unless it will be essential to comply with them on the grounds of publi c policy and further that the rules of the court are nothing but intended to secure the proper administration of justice and, therefore, it is 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. It was further observed that the change of heading of a suit from specific performance instead of declaration, etc., with a similar change in the prayer would not cause any material change in the nature of suit or any embarrassment to the opposite side either in seeking and making similar amendments in their written statement.
6. Reference can also be made to the case of "Keramat Ali and another v. Muhammad Yunus Haji and others"
(PLD 1963 SC 191) where amendment in the plaint of a suit for declaration- so as to incorporate the relief of "possession" was allowed by the august Supreme Court, observing that the amendment prayed for did not alter the nature of the suit and it only brought an additional claim which the party should have asked for in the suit and that it would be a cause of great hardship to defeat the right merely on technical grounds. In "Ahmad Din v. Muhammad Shafi and others" (PLD 1971 SC 762) it was observed that if the suit was otherwise maintainable and the court had the jurisdiction to grant a relief and the parties were otherwise entitled to the relief, it will be open for the court to allow the party to amend the plaint by adding the prayer of "possession" and pay appropriate ad valorem court fee and thereafter to grant the relief even though he had not specifically asked for it.
7. In view of the consistent rule, the application under Order VI, Rule 17, C.P.C. for amendment in the plaint filed by the respondent Nos. 1 to 3, if conside red, it is discernible that the proposed amendment by no stretch of imagination could be said to have either introduced a new or distinct cause of action nor could be claimed to be a case of substitution of cause of action nor it can be assumed to be an introduction of a new case. The perusal of the plaint reveals that the basis of cause of action pleaded by the respondents/plaintif fs is that the property belong to their father , he had gifted out the property in favour of the respondent Nos. 1 to 3 and Muhammad Akram (deceased) and that the same was affirmed in the decree of the court and also given due effect in the revenue record and that the sale deeds under challenge were fabricated, forged, fictitious documents which were not thumb-marked or signed by the deceased and needed to be declared as such and cancelled. It was also their case that the documents on the face of it suffered from numerous inaccuracies and contradictions which established that the same were fictitious and 'fabricated. Since the respondents were not in possession, they should have prayed for the relief in the plaint and having been pointed out in the written statement that they were out of possession, the prayer for the amendment in the prayer clause was made so as to insert the relief of possession. The basic cause of action, which turns on disputed documents, was not changed nor by adding the word "recovery of possession" the character of the suit could be said to have been changed as in law by way of amendment a suit for declaration could be treated as a suit for specific performance, a suit 'for mandatory injunctio n could be treated as a suit for specific performance or possession if the basic cause of action remains the same. The only rider is that the party could not be allowed to substitute a new cause of action or introduce a cause of action distinct from the one which was the basis of the suit and which was not the situation in the present case.
8. As regards the other amendments in certain paragraphs of the plaint, the same also relates to the insertion of facts without altering the cause of action and the objective appears to point out inaccuracies and the circumstances which proved beyond doubt that the documents were forged, fictitious and a result of fraud. Being so, the proposed amendment in the plaint, in no way will change the nature of case rather the same are necessary to decide the real matter in controversy .
9. The learned Civil Judge after considering all the circumstances of the case, pleadings of the parties and law applicable on the subject, allowed the application with a well-reasoned order which was perfectly in accordance with law and was rightly affirmed in revision by the learned Addl. District Judge. No error of law or jurisdiction could be 'pointed out for seeking interference in Constitutional jurisdiction.
10.The writ petition being without merit and substance is, therefore, dismissed .