MUHAMMAD AMEER BHA TTI, J.--- This revision petition impugns the legality and validity of judgments and decrees of the learned Courts below dated 21.03.201 1 and 30.11.201 1 respective ly whereby the suit and appeal filed by the petitioner were dismissed.
2. Brief facts of the case are that by virtue of suit for declaration alongwith permanent injunction, Mutation No.2789 dated 20.11.1993, sanctioned in favour of respondents on the basis of Tamleeknama was filed by the petitioner being one of the legal heirs of deceased/owner of the property . The suit was contested by the respondents by way of filing written statement wherein it was disclosed that in consequence of sanctioning of said mutation, other transactions had been carried out and last transaction in series was recorded in favour of defendants No.3 to 7 on the basis of registered sale deed dated 04.07.2002 and 08.03.2003 followed by sanctioning mutation Nos.4567 and 4568 in their favour . Acquiring knowledge of these transactions the present petitioner filed an application on 05.04.2006 under Order VI Rule 17 C.P.C. for seeking amendment in the plaint in order to challenge all the transactions held before filing the suit to avoid multiplicity of litigation. During pendency of this application, another application for seeking amendment in the memo of parties was also filed to implead the persons in whose favour subsequent transactions have been Made as defendants. Record reveals that defendants No.3 to 7 were allowed to be impleaded whereas application for seeking amendment in the plaint to challenge the subsequent transactions after the original mutation No.2789 dated 20.11.1993 was refused vide order dated 23.02.201 1 and ease for the first time was fixed for recording of evidence of the plaintif f and that too with a caution that no further opportunity will be granted. However , on 16.03,201 1 the petitioner first time made the request for obtaining date for production of evidence which was granted with a caution that no further opportunity will be granted to the plaintif f to produce the evidence and the case was adjourned for 21.03.201 1 (after about 5-days).
Record reveals that on the said date i.e. 21.03.201 1, the evidence of the petitioner was not available; hence her right to lead evidence was closed under Order XVII Rule 3 C.P.C, holding that despite giving last opportunity on the last few dates to produce her evidence, same have not been availed/complied with in consequence whereof, suit was dismissed for lack of evidence. The petitioner preferred appeal wherein she specifically took the ground regarding illegal dismissal of her applicat ion under Order VI Rule 17 C.P.C. for not granting permission to amend the plaint to challenge the subsequent transactions came to her knowledge after filing the written statement by the defendants. The learned first Appellate Court while dismissing appeal of the petitioner vide impugned 'judgment and decree dated 30.11.201 1 did not pay any heed to the grounds regarding dism issal of application under Order VI Rule 17 C.P.C. as the order of the learned Appellate Court is silent in this regard whereas with regard to closing of evidence, the petitioner was held negligent hence declared that the learned trial Court has not committed any illegality while declining that the petitioner failed to produce evidence despite availing numerous opportunities; hence this revision petition.
3. Examination of record reveals that although the application with regard to impleadment of defendants No.3 to 7 was allowed by the learned trial Court but the transactions recorded in their favour were not allowed to be challenged in the plaint by way of amend ment, hence the findings recorded by the learned trial Court in its order dated 23.02.201 1 passed in application under Order VI Rule 17 C.P.C., on the face of it, seems to be illegal and unlawful. The, petitioner in plaint had challenged the original transaction/mutation bearing No.2789 dated 20.11.1993 recorded on the basis of Tamleeknama in favour of defendants No.1 and 2 who subsequently transferred it by way of exchange and sale deed to other persons transpired from the written statement of defendants, consequently the petitioner rightly moved application seeking amendment in plaint in order to challenge the same to avoid complicatio ns and multiplicity of litigation. It is the requirement of law that all the subsequent transactions shall not only be challenged but beneficiaries thereof be also impleaded so that all the effectees of declaration of the original transaction, if recorded, shall be before the Court and they shall also be provided opportunity to defend themselves.
The basic question which' ought to have been determined by the Courts for deciding the application seeking amendment in the pleadings is that the complexion of the suit should not be changed on account of grant of proposed amendment, whereas this aspect of the case has not been examined, as the order impugned passed by learned trial Court in this regard is silent, therefore, the same is unsustainable in the eye of law, whereas learned first Appellate Court even not touched point of seeking amendment in plaint as no finding is available in its order despite the fact that the petitioner had specifically challenged the findings of the learned trial Court passed on application for seeking amendment in Para No.3 of memo of appeal, therefore, on account of this deficiency , the judgment of the learned first Appellate Court is nullity in the eye of law .
4. So far as the matter with regard. to non-production of evidence is concerned, I have examined the case, of petitioner in the light of judgment of Hon'ble Supreme Court reported, as Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401 ) and I am of the affirmed view that the petitioner has not been granted adequate opportunity to lead evidence. On 23.02.20 11 by rejecting the application under Order VI Rule 17 C.P.C. for seeking amendment in the plaint, the case was adjourned for 16.03.201 1 for production of evidence and on the said date, the petitioner obtained time for production of evidence which was although granted but with caution that on account of non-production of evidence, her right to lead evidence will be closed and case was fixed for 21.03.201 1 (after 5- days) and on the said date on account of non-availability of evidence, her right was struck off and suit was dismissed. Hon'ble Supreme Court in a case referred supra wherein the delinquent party had availed four opportunities with caution and for that reason Hon'ble Supreme Court held it enough and sufficient to meet the ends of justice but in the instant case only one opportunity was given to the petitioner , hence the view taken by the learned trial Court in not granting another opportunity to lead evidence by imposing cost is hereby declared harsh. I find it a fit case where this Court must exercise the power provided under Section 115 C.P.C., to rectify the wrong done by both the learned Courts below . Consequently , this revision petition is allowed, the order dated 23.02.201 1 passed by the learned trial Court refusing to grant amendment in the plaint qua incorporation of subsequent transactions done by the defendants/respondents, is hereby set aside, as a result whereof, said application is allowed and the petitioner is permitted to incorporate all those transactions which had been made by the defendants in favour of other persons but before filing of suit and file the amended plaint accordingly within a period of 15-days from the date of entrustment of this case to the learned trail Court. Although on account of grant of permission for filing amended plaint the order and decree dated 21.03.201 1, whereby the suit of the petitioner was dismissed on account of lack of evidence has become redundant, hence I set aside the same not only on this ground but also on the ground that adequ ate opportunity to lead evidence was not granted to the petitioner . At the same time the judgment of the learned first Appellate Court who did not adequately meet with the grounds taken in the memo of appeal with regard to the order passed by the learned trial Court declining application under Order VI Rule 17 C.P.C. being defective in this regard is also set aside, as a consequence whereof, the suit of the petitioner shall be deemed to be pending before the learned trial Court which shall re-adju dicate the same alter receiving amended plaint and written statement in terms mentioned above.
5. Parties are directed to appear before the learned Senior Civil Judge, Sheikhupura on 25.04.2017, who shall take on this matter either himself or entrust it to any other learned Civil Judge for its re-adjudication as per law .
6. With the above observations, this petition stands accepted and case remanded.