ZAFFAR HUSSAIN MIRZA, J.-This petition for special leave to appeal is directed against the judgment dated 31-5-1982 passed by a Division Bench of the Sind High Court, whereby the High Court Appeal filed by the petitioner was dismissed and the decree passed by the learned Single Judge of the High Court impugned therein, was upheld. The respondents in this case, namely, Mst.
Shahzaman Begum and others are legal heirs, being the wife and children, of one A.I Ahmed Khan Warsi. The petitioner and the said A.I Ahmed had entered into a partnership which was dissolved by mutual agreement on terms and conditions agreed upon and incorporated in a deed of dissolution of partnership executed by the parties on 20-1-1982. In substance it was agreed that the assets of the partnership business valued at Rs. 1,30,000 were to belong alongwith the business of the partnership to the petitioner, on condition that he shall pay half the estimated amount of value i.e. Rs. 65,000 by or before 20-1-1963 to the said A.I Ahmed, failing which the latter would take over the properties mentioned therein as sole and exclusive owner thereof. It seems that the petitioner was unable to make payment within the aforementioned stipulated period but made some belated payment of Rs. 20,500 to the said A.I Ahmed on 15-7-1964.
2. It is the case of the respondents that on 3-8-1964 the petitioner and his wife Mst. Buqridan executed an instrument called `Iqrarnama' in favour of A.I Ahmed which recited the fact that the petitioner could not make the payment within the stipulated time in the deed of dissolution and therefore, it was agreed that A.I Ahmed could take over Plot No. L-B-20, Block No. 21, Scheme No. 16 obtained by way of allotment from the Karachi Development Authority by the partnership, for a sum of Rs. 4,800 which had already been paid as first instalment at half occupancy value and also in consideration of A.I Ahmad not claiming the possession and ownership of the other assets of the dissolved partnership as per dissolution deed. In lieu of this an amount of Rs. 4,800 would be ad-- justed against the balance due from the petitioner, which was thus reduced to Rs. 39,700. The last mentioned amount was undertaken to be paid by the petitioner within a period of six months. The payment of this amount was guaranteed by Mst. Buqridan on the assurance of her immovable property comprising House No. A-3-003. A.I Ahmed also received a sum of Rs. 1,500 from the Karachi Development Authority which was payable to the partnership and after adjusting this amount, the not .Balance payable to him was Rs. 38,200.
3. In the events that happened it turned out that the petitioner had entered into an agreement of sale of the aforesaid Plot No. L-B-20, in favour of Messrs Hanif Rashid Company, who filed a suit for specific performance of the agreement in the High Court (vide Suit No. 130 of 1966) against the petitioner and the said A.I Ahmed. Upon learning the fact that the petitioner had agreed to sell the said plot to another party, A.I Ahmad brought Suit No. 168/1967 on the original side of the High Court of Sind at Karachi against the petitioner, his wife Mst.. Buqridan and the proposed purchaser Messrs Hanif Rashid Company for declaration and recovery of Rs. 38,200. In this suit A.I Ahmed claimed that be was the sole and exclusive allottee entitled to possession of Plot No. L-B-20, Block No. 21, K.
D. A. Scheme No. 15; Federal `B' Area, Karachi, by virtue of the Iqrarnama.
4. The petitioner contested the suit and in his written statement raised various legal pleas and also raised pleas of fact which are reflected in the issues framed by the Court as under
(1) Is the suit barred by the law of limitation
(2) Whether Iqrarnama is a valid, genuine and properly stamped document and admissible I n evidence. If not, its effect ?
(3) Whether the plaintiff is entitled to possession of the plot in dispute?
(4) What amount the plaintiff is entitled to ?
(5) Is this suit properly valued ?
(6) Relief ?
5. The learned Single Judge vide Iris judgment dated 12-3-1980 decreed the suit in favour of the legal representatives of A.I Ahmed (respon--dents herein), as the latter had died during the pendency of suit and was substituted by them.
6. In Suit No. 133/1966 filed by Messrs Hanif Rashid Company a money decree in the sum of Rs.
35,592.40 was passed against the petitioner. The petitioner filed High Court Appeal No. 42/1975 against that judgment, but this appeal was disposed of by compromise between the parties in terms whereof the petitioner paid a sum of Rs. 28,592 with interest to Messrs Hanif Rashid Company.
7. Feeling aggrieved by the judgment dated 12-3-1980 in suit No. 168/1967, the petitioner filed High Court Appeal No. 24/1980 which has been dismissed by a Division Bench of the Sind High Court as per the impugned judgment in this petition.
8. In support of this petition Mr. Safdar Hussain Fani, Advocate has raised the following contentions :
(i) The suit although purporting to be passed on' the Iqrarnama dated 3-8-1964 in substance and in reality was based on the deed of dissolution dated 20-1-1962 and hence was barred by limitation under Column III in Article 113 of the Schedule to the Limitation Act.
(ii) The trial Court seriously erred in allowing amendment of the plaint at the request of the legal representatives of A.I Ahmed, whereby an additional prayer for possession of the land in suit was allowed to be incorporated in the plaint; which had never been claimed by the deceased plaintiff at any time.
(iii) The judgment in Suit No. 130/1966 operated as res judicata vis-a-vis the. Suit out of which this petition arises (Suit No. 168/1967).
(iv) The Iqrarnama Exh. 50, on which the suit for specific performance in this case was based, is a bond and not an agreement of which specific performance could be ordered.
6. As regards the first contention, it was conceded before the trial Court that the suit as regards the claim for money was within time but so far as it related to the relief of possession, it was contended that the suit was time-barred. The agreement in this behalf proceeded on the basis that the suit filed' by A.I Ahmed was in substance a suit for specific per--formance. It was submitted that the relief of possession was effectively sought by means of amendment of the plaint by the legal representatives of A.I Ahmed with effect from 17-2-1979 when their application was allowed, which would be the effective date of the filing of the suit vis-a-vis the claim for possession. It was accordingly contended that suit thus having been brought after the lapse of more than three years was barred under Article 113. It was alternatively contended that in any case the suit was barred as it was brought three years after the date of the refusal on the part of the petitioner to fulfil the agreement for the transfer of the plot. These contentions on the point of time bar were repelled by the learned trial Judge. He held that the suit as originally framed, not being barred by limitation, the addition of the further relief of possession in the plaint by amendment even after the date when separate suit for such relief would he barred by limitation, does not attract the objection of limitation as was held in the case of Karamat A.I v. Muhammad Younis (PLD 1963 SC 191). As regards the alternative argument, it was further held that on facts, A.I Ahmed had notice of the refusal to perform the contract on the part of the petitioner on 3-8-1965 when he entered into the second agreement for sale in favour of Messrs Hanif Rashid Company and the suit having been filed on 7-8-1967, was, therefore, within time. The learned Division Bench also repelled the contention for similar reasons. We agree with the reasoning of the learned Judges of the High Court that the suit was not barred by limitation. It was additionally argued before us that no reliance on the Iqrarnama could be placed for the purpose of extending the period of limitation, in the absence of any such plea having been specifically taken in the plaint as required by Order VI, rule 6 of the Code of Civil Procedure. It appears no such argument was advanced before the learned Judges of the Division Bench. However, on a perusal of the plaint it would appear that the cause of action for this suit was based upon the breach of stipulations contained in the Iqrarnama dated 3-8-64 and the suit was filed on the first day of the reopening of the' Court after summer vacation on 7-8-1967. Consequently the suit was brought within time even if the limitation period was three years from the date of the Iqrarnama.
10. As to the second contention it may be stated that the suit was originally brought for declaration and for recovery of money but sub--sequently after the death of A.I Ahmed, the respondents who were brought on record as his legal representatives, prayed for amendment of the plaint so as to include the relief of possession in the plaint. This application seems to have been contested by the petitioner but the learned trial judge following the decision in the case of Karamat A.I, already referred to granted the request of the respondents and permitted them to amend the plaint. Before the High Court it was urged on behalf of the petitioner that the learned trial Judge fell into an error in allowing the amendment, as the claim for possession had already become time-barred on the date of the application. This contention was repelled on the basis of the judgment of this Court in the case of Karamat A.I in which it was postulated that the power of this Court to allow an amendment of the pleadings, no doubt would be reluctantly exercised, if such amendment would have the effect of totally altering the nature of the suit or 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 relief this Court will not hesitate to do what the Judicial Committee did in the case of Muhammad Zahoor A.I Khan v. Mst. Thak--orani". In the latter case the Privy Council maintained that it had undoubtedly full power to allow such amendments even where the legal rights had accrued by lapse of time if the special circumstances of the case outweighed. Such considerations. These principles are equally applicable to the exercise of power on the original side of the .High Court. The addition of the relief of possession in the suit did not in any marine change the character of the suit or introduce any new cause of action. We, therefore, see no force in the contention that the amendment was not justified.
11. It was further contended by the learned counsel for the petitioner that the respondents being parties to the suit in their capacity as legal representatives of the deceased plaintiff, had no right to claim the relief which the deceased had not in fact claimed in his suit. Support was sought for this submission on the proposition that the right to sue that survives to the legal representatives of a deceased plaintiff under Order XXII, rule 1 of the Code of Civil Procedure is co-extensive to the right that the deceased possessed in respect of the relief that he asserted at the time of his death. It was accordingly argued that since deceased plaintiff had not claimed the relief of possession during his lifetime, the respondents only representing the right of the deceased, could not claim this relief as no such right survived to them. Reliance in this behalf was placed on the case of Muhammad Iqbal and 2 others v. Ghulam A.I Shah (PLD 1975 Lah. 1205). Order VI, rule 17 of the Code of Civil Procedure lays down the power of the Court to allow either party at any stage of the proceedings to amend his plead--ings, inter alia, for the purpose of determining the real questions in controversy between the parties. If the right to sue in a given case survives, the legal representatives of the deceased plaintiff can be brought on record and they can continue the suit, in the same manner as the deceased plaintiff could have done. Since the deceased plaintiff could apply for amendment of the plaint at any time, similar right would see to be available to the legal representatives to seek an amendment of the plaint at any time in terms of Order VI, rule 17 of the Code of Civil Procedure even after the death of original plaintiff. There is no principle of law on which the right of the legal representatives to apply for amendment of the pleadings in order to add a further relief in the prayer clause of the plaint, arising out of the same cause of action could be denied. In our view the case of Muhammad Iqbal relied upon by the learned counsel does not advance his contention, as the case considers the position under the Punjab Pre-emption Act, 1913, in which statute different considerations arise for determining the question whether the right of pre-emption claimed in the suit survives to the person claiming to be the legal representative of the deceased plaintiff. There is, therefore, no substance in the contention that the amendment of the plaint was unjustifiably granted by -the trial Court.
12. The next point urged by the learned counsel was that the decision in Suit No. 130/1966 in which the petitioner and deceased All Ahmed were both defendants, is a bar to the present suit as res judicata between the two defendants. As already stated, this suit was decreed against the petitioner and was eventually compromised in appeal whereby the petitioner consented to a money decree against himself. We are unable to appreciate how such a decision will operate as res judicata as to the issues in the present suit between the parties. This question was never raised at the trial and no argument was made on this basis before the Division Bench in appeal. The petitioner cannot, therefore, be permitted to raise this point in absence of the material in the evidence of this case necessary to decide this question.
13. The last submission in support of the present petition was that the Iqrarnama Exh. 50 is a bond and not an agreement of which specific performance could be enforced. This question has been considered at length by the trial Judge as well as the learned Judges of the Division Bench and it has been held, on an analysis of the material evidence on record, that the document was signed by the wife of the petitioner and that he was a party to the same. The argument of the learned.
Counsel for the petitioner that the Iqrarnama Exh. 50 was an attempt at novation of contract beyond the scope of section 62 of the Contract Act and hence not enforceable at law is also devoid of force. Again no such plea was raised at the trial so that evidence could have been produced by the respondents but in any case the petitioner cannot be allowed to attribute to them a case not pleaded by them and then to challenge that such case is untenable' at law. The reliance on the case of Abdul Qayoom v. Ziaul Haq and another (PLD 1962 Kar. 334) is, therefore inapt.
14. All the contentions advanced in support of this petition, for the reasons sated above, are without substance and therefore, this petition fails. It is accordingly dismissed.