MUHAMMAD SHAN GUL, J. Through this judgment, this Court shall decide the titled Constitutional petition filed to challenge order dated 16.06.2021 passed by a learned Additional District Judge in a revision petition No.09/2021.
By way of the impugned order , the revisional court allowed the application of respondent No.3 and allowed her to amend her plaint under Order VI, Rule 17 C.P.C. The trial court had earlier by order dated 15.01.2021 dismissed the application.
2. The counsel for the petitioner submits that the revisional court has exceeded its jurisdiction in allowing the application for amendment in the plaint filed by the respondent under Order VI Rule 17 C.P.C. He submits that by the said allowance, respondent No.3 has been allowed to set up a completely new case in the matter and, therefore, on this score the impugned order dated 16.6.2021, passed in revision needs to be set aside especially when the trial court had declined the same application vide order dated 15.1.2021.
3. Facts in brief are that respondent No.3 Fatima Tehsin instituted a suit for declaration along with cancellation of disputed Hiba Deed No.2249 dated 28.6.2013 with the consequential relief of an injunction against the petitioner .
The original stance of respondent No.3 being that she was owner in possession of the suit property on the basis of Hiba Deed No.4762 dated 20.11.2012 executed by Muhammad Ameen the original owner of the suit property . She averred that the petitioner had illegally managed registration of disputed Hiba Deed No.2249 and, therefore, in addition to praying for its cancellation, also prayed for a declaration as owner in possession.
4. On 24.10.2019, respondent No.3 moved an application under Order VI, Rule 17 C.P.C. seeking amendment in the plaint filed by her on the ground that on 21.10.2019, the present petitioner illegally dispossessed her from the suit property and that she be allowed to incorporate this fact through an amended plaint with the additional prayer for restoration of possession. The trial court vide order dated 15.1.2021 dismissed the application of the respondent by holding, "amendments sought will not only change the nature of the suit but also be a new claim based on a new set of facts. As the sought for amendment will change the nature and character of the suit, the same is not warranted by law ."
5. In revision, a learned Additional District Judge turned the tables and allowed the application seeking amendment by holding:- "Her original suit is for declaration, cancellation of disputed Hiba Deed No.2272 dated 28.06.2013 alongwith consequential relief of injunction. Now through amendment she just wants to add new relief i.e. restoration of her possession. Hence, amendments sought do not amount to change nature or complexion of the suit. Of course, even though introduction of amendments sought, basic structure/ founda tion of the suit will remain the same. No self-destructive type of plea is being claimed by her . .......
11. As an inescapable corollary and repercussion of observations supra, this revision petition is accepted.
Impugned order dated 15.01.2021 is set aside. Consequent thereupon main application of the petitioner/plaintiff filed u/o VII Rule 7 C.P.C. stands allowed as prayed for Learned trial court is directed to obtain amended plaint in the suit and thereafter to proceed further with the trial in accordance with law ."
6. The counsel for the petitioner submits that by allowing the amendment in question the whole nature of the suit and the entire character thereof has been changed and, therefore, the revisional court should not have allowed the respondent to do a volte-face. Adds that by allowing the amendment in question, the revisional court has allowed the respondent to set up a completely new claim based on new facts and which cannot be perpetuated under Order VI, Rule 17 C.P .C.
7. On the other hand, learned AAG states that the provisions of Order VI, Rule 17 C.P.C. are crystal and any amendment can be allowed to be made so as for the court to gauge and determine the real controversy between the parties. He submits that the only rider in this respect is that the subject matter of the suit or cause of action ought not to be substituted. He adds that generally such an amendment is permissible where the plaintif f beco mes entitled to further relief by reason of events subsequent to the filing of suit. He further states that the said power to permit amendment is discretionary in nature and such discretion is governed and controlled by judicial principles which are as follows: multiplicity of suits should be avoided, interests of substantial justice should be advanced, also where the amendment is required for the purpose of amplifying the same cause of action or where the amendment is required for taking note of subsequent events.
8. While the counsel for the petitioner has relied on "Syed Muhammad Ali and others v. Syed Dabir Ali and others" (2016 SCMR 2164 ), the learned AAG has relied on "Haji Sultan Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others" (2018 SCMR 82 ).
9. Heard. Record perused.
10. With the help of the learned counsel for the petitioner as also the learned AAG, this Court has perused the available record and it can straightaway be observed that the amendment so allowed to be made in the pleadings by the revisional court is indeed germane to the contents of the suit, with the stance of respondent No.3 always being that she was in possession. In fact, the factum of dispossession gels well with other facts contained in the plaint. Moreover , there is no question of changing the character of the suit in question and, likewise, there is nothing to suggest any deviation in the nature of the suit.
11. It may be mentioned here that respon dent No.3 instituted a suit for declaration and cancellation of Hibanama with respect to the same property in respect of which she has alleged dispossession. She had also prayed for an injunction in the matter . It is not as if she has asked for dower or alimony from the civil court in a civil suit and in fact the amendments so requested are quite justified in the present circumstances. Most importantly , allowing for such amendments also results in avoidance of multiplicity of litigation. Judgments reported as "Karamat Ali and another v. Muhammad Yunus Haji and others" (PLD 1963 SC 191), "Muhammad Mian v. Syed Shamimullah and 2 others" (1995 SCMR 69) and "Muhammad Fayyaz v. Hafiz Liaqat Ali and 5 others" (2020 CLC 1184) quite clearly suggest that as long as the amendment is relevant to the suit already instituted the same ought to be liberally allowed.
12. The precedent case relied upon by the counsel for the petitioner "Syed Muhammad Ali and others v. Syed Dabir Ali and others" (2016 SCMR 2164 ) pertains to amendment in a written statement. In this case the written statement challenging the claim of the plaintif f was sought to be amended by setting up a completely new defence of creation of Waqf-ul-Aulaad created in the year 1966. However , in the original written statement filed in the year 1968, the factum of creation of such Waqf was not mentioned. It is, therefore, that the Hon'ble Supreme Court of Pakistan noted that the creation of Waqf was an afterthought and that, therefore, since the same changed the entire complexion of the defence it ought to be disallowed.
13. As opposed to this, the facts before this Court paint a completely different picture. In the present matter , the original suit is for declaration along with cancellation of gift deed and the conseq uential relief for injunction. The application seeking an amendment in the pleadings only sought to add the relief about restoration of possession and which only came to pass on acco unt of the new development and that being of the respondent being dispossessed by the petitioner . By no stretch can such an amendment be deemed to set up a new case or for that matter change the nature or complexion of the suit. Even after the amendment, the foundational structure and matrix of the suit will remain unaffected. On the other hand, the judgment relied upon by the learned AAG i.e. "Haji Sultan Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others" (2018 SCMR 82) clearly favours a liberal and expansive approach and holds that where a plea could naturally arise and could co-exist with the main plea, then the same should be allowed to be introduced by seeking amendment in pleadings.
14. That, likewise, in "Syed Nazir Ali Rizvi v. Zahoor Ahmad and another" (PLD 2005 SC 787), it has been held at paragraph No.6 as follows:- "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. Shahsawar v. Najamul Hassan 1981 SCMR 730, Khudeja v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. m.v. Titisee PLD 1993 SC 88 and C 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 amendm ent". 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 . Haseena Begum 1989 SCMR 476 ."
15. In "Muhammad Mian v. Syed Shamimullah and 2 others" (1995 SCMR 69), it has been held at paragraph No.3 as follows:- "The application has been contested by the respondents. It has been stated that the, application has been filed after long delay . The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage. The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is a consequential relief for declaration. This relief arises out of the claim of the appellant. The amendment sought by the appellan t is only of technical nature. No further evidence is required. In' Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) it has been observed that "the suit could not fail merely by reason of fact that consequential relief by way of possession had not been claimed. If the suit was otherwise maintainable and the appellant was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees." In Zubaida Bibi v. Hashmat Bibi (1993 SCMR 1882 ) the prayer for amendment of plaint was allowed. W e, therefore, allow the amendment at the cost of Rs.5,000."
16. In "C.A. Waheed v. Aftab Ahmad Mian and another" (PLD 2006 Lahore 68), a learned Single Judge of this Court has very aptly discussed the ethos and nature of Order VI, Rule 17 C.P.C. and has held that incorporation of additional fact in the pleadings without changing nature of the suit or its underlying basis could not be treated as a change of cause of action which alters the nature of the suit. That whenever an amendment was aimed at elaborating and amplifying an existing cause of action and neither changed its nature nor introduced a new cause of action different to the one originally pleaded in the suit it could be termed as inherent to and connected with the original cause of action pleaded in the suit. The Court went on to hold that such change would instead highlight the real controversy between the parties and promote fair adjudication of the dispute.
17. The most relevant precedent case with respect to the present subject matter is reported as "Karamat Ali and another v. Muhammad Yunus Haji and others" (PLD 1963 SC 191). In this case the plaintiff asked for relief of repossession at the stage of his appeal before the Hon'ble Supreme Court of Pakistan and even at this stage the Hon'ble Supreme Court of Pakistan allowed for amendment for repossession to be made and held that the nature of the suit was not altered by the additional prayer for repossession. In the words of the Hon'ble Supreme Court of Pakistan:- "That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Keramat Ali himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer . This was sometime in 1944-45 and, as such the claim of the appellants to possession has clearly become barred by limitation.
The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had ac-rued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer (11 MIA468) and Charan Das and others v. Amir Khan and others (AIR 1921 PC 50). That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power , no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v . Mst. Thakooranee Rutta Koer .
The present, in our view, is a case, which comes within this exception. The amendm ent prayed for does not seek to alter the nature of the suit. It only brings in an additional claim, which the appellants should have asked for in the suit. Ever since 1937, when they auction-purchased the properties in dispute they have consistently , been endeavoring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground: W e are, accordingly disposed to grant them leave to amend their plaint."
18. Seen from whatever angle no case is made out for interference.
19. It may be added here that all rules of the Civil Procedure Code are geared towards securing proper administration of justice and should always be interpreted with this aim and purpose. Order VI, Rule 17 confers a discretionary power on a Court which a Court only exercises in consonance with and in the light of judicial principles contained in judicial precedents. If this Court were to try and emulate and follow former Chief Justice Asif Saeed Khosa ("Mst. Sughran Bibi v. The State" (PLD 2018 SC 595), "Khizar Hayat and others v. Inspector- General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) among other cases, Lord Diplock (GCHQ case 1985 AC 374 House of Lords) or even Lord Greene (Associated Press v. Wednesbury Corporation) and try and catalogue when and where an amendment ought to be allowed then, perhaps, the following position will emerge:
20. An amendment in pleadings may be allowed where multiplicity of suits will be avoided, where the amendment does not alter the subject matter or the cause of action of the suit, where it does not take away any accrued right, where the plaintif f becomes entitled to further relief by reason of events subsequent to the filing of the suit, where the cause of action needs amplification, where the interests of safe and accurate administration of justice so require, where on account of a plaintif fs' evidence a new statutory line of defence gets triggered, where no injustice will be caused, where a relief has inadvertently been left out - the list is not exhaustive but just an attempt at cataloguing instances where it will be in line with trite and established law to allow amendment in pleadings under Order VI, Rule 17 C.P .C.
21. For what has been discussed above, this petition being devoid of any merits is dismissed .