1. ' This Revision Application has been filed against the order of the 1st Additional District Judge, Hyderabad, whereby the petitioner's application under Order VI, rule 17, C. P. C. Has been rejected.
2. ' Briefly, the facts are that, House No, B/80 situated at New Hala, District Hyderabad was transferred by the Settlement Authorities to Abdul Shakoor and Muhammad Sharif. Under an agreement of association dated 9th November, 1963 these transferees surrendered their rights and shares in the aforestated property in favour of the petitioners. This agreement was accepted by the Settlement Authorities and the petitioners were delivered vacant possession of the entire house. There were three shops adjacent to the petitioners' house bearing Custodians Nos. B-75, B-76 and B-77 which were purchased by respondent No,
1. It has been alleged that the respondent No, 1 got City Survey No, 560 inserted in his Permanent Transfer Deed in respect of property bearing Custodian No, B-77.
3. Likewise, the Survey Nos. 561, 565, 566 and 567 were also got inserted for property bearing Custodian No, B-76 and City Survey No, 562 was inserted for custodian No, B-75. It has been alleged that the insertion of these survey numbers in the P. T. D. Of respondent No, 1 was made without any Roobkari or any order of competent Settlement Authority and even such insertion and entries were not signed by any Settlement Authority, therefore, the entries relating to these survey numbers were illegal, and void ab initio. It has been alleged that on the basis of these entries in the \P. T. D.
4. The respondent No, 1 tried to dispossess the petitioners from the house. When the petitioners came to know about these entries, they filed a suit with the following prayers :-
(1) Declare that the property House Custodian No, B/80 corresponds to City Survey Nos. 554, 555, 556 and 557 New Hala.
(2) Any other relief which the Honourable Court may deems fit and proper.
(3) Award the costs of the suit.
5. ' The respondent No, 1 filed written statement and denied the allegations made by the petitioners stating that the properties were disposed of not as shops, but as house. It was pleased that the City Survey Number was inserted in his P. T. D. By the Settlement Authorities in the ordinary course. It was further pleaded that the suit is barred under section 42 of the Specific Relief Act. The learned Trial Court dismissed the suit on merits and also observed that as the petitioners had filed suit for declarairon without any further relief, the suit was barred under section 42 of he Specific Relief Act.
6. The petitioners filed an appeal before the 1st Additional District Judge and application under Order VI, rule 17, C.P.C. To amend the plaint by adding the following prayer : "It may be ordered that the entries C. S. Nos. 556 to 557 made in the P. T. D. By Abdul Salam son of Abdul Aziz in respect of Custodian No, B-76 New Hala may be deleted."
7. ' This application was dismissed by the impugned order. The main reason for the dismissal was that the application has been filed after six years of the filing of the appeal. It was further held that the prayer sought to be added will change the nature of the suit.
8. ' Mr. S. A. Jamali, the learned counsel for the petitioners has contended that as the petitioners are in possession of the house, the amendment sought will not change the nature of the suit, and further that the amendment will merely obviate a technical objection raised by the respondents. The learned counsel has referred to PLD 1963 SC 191 and PLD 1973 SC 507. Mr. Hassan Mahmood Baig, the learned counsel for the respondent, on the other hand has contended that as the application has been filed after about seven years, and no explanation for such delay has been given it was rightly dismissed. Reliance has been placed on Raja!) Ali v. Gujrat Bus Service . In this case, the respondent had filed a suit for possession, rent and mesne profit which was decreed. In appeal defendant/appellant filed application for amendment of written statement. The Court noticed the incorrect facts and contradictory pleas raised by the defendant/appellants and dismissed the application mainly on the ground that it was belated and was intended to delay the proceedings, An this case by amendments new plea was also raised. The riia reasons ,which Amrsuaded the learned Bench to dismiss the applica- tiOri ivas xprasse4 itrtbiti folio wing manner "-W4 foottied tfie impression that the'real object of the applica- ,, ua njasttttagetartne disposal of the present appeal, as the aocjf 'cunitnuca'inpossession orthe suit land for these years 0x i1 ,_atfk* ly hopes to continue if the proceedings are.Prolonged wriaD ,tly (194,94ptance tIkupplication for amendment. If'indeed the 4riwof etitlial,donspOad ttitany amendment in his pleadings was called therelsnoikplanation why he did not move earlier, or in any case, at the time when the appeal was filed in this Court. We also 0841 observe that as regards the question of compensation to the defen- w dtmt, woo not-raised ail at the trial, arl it must be esti taken to have been abandoned, and cannot be allowed to be revived at this stage".
9. ' In the present case, the petitioners are in possession of the property, and no mala fide can be attributed to them, for making this application, which according to the petitioners, they have filed by way of abundant caution and to meet the technical objection raised by the respondent No,
1. In these circumstances, the delay cannot be said to be fatal or negligent.
10. ' The learned counsel for the respondent No, I referred to Syed Mutasil Shah v. Khawaja Rafiullah. In this case, an application for amendment of the plaint filed in appeal was rejected with the following observation : "The order of the District Judge, Dadu, dated 6th April, 1963 in very clear terms, referred to the existence of this registered sale-deed and in fact the District Judge has used evidence of this document as one of the grounds on which he has refused to issue any injunction against the1 2 respondent No, 2, as had been prayed for by the appellant. The appellant had failed to take notice of this fact all this time when he should have amended this plaint so as to include the relief of getting his document cancelled. At this late stage, during the pendency of the appeal, at least the interest of the respondent No, 2 are seriously to be affected and his position is bound to be greatly jeopardised, as this amendment would amount to introducing new subject-matter and a new relief against him which is effectively changing the whole character of the suit."
11. ' By the amendment sought by the petitioner, neither subject-matter, nor the character of the suit will be changed. No new facts are introduced, as were sought to be introduced in this case. The observation in this judgment, therefore, cannot be applied to the present case. The learned counsel also referred to the case of Messrs Trans-Oceanic Steam Co. Ltd. v. Tayoob Moosa and Co.. This is avert' short judgment laying down a principle which cannot be disputed, but as facts have not been stated in detail, it cannot be applied to the present case. The learned counsel for the respondent has relied upon Karamat All v. Muhammad Yousuf where the appellant had applied for amendment of the plaint by adding a prayer of possession. This application was opposed on the ground that it was belated and the prayer was barred by limitation. While referring to Muhammad Zahoor v. Mst. Thakrani and Charandas v. Ameer Khan and others the following observations were made :- "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 the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where 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 Muhammad Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.
12. ' The present in our view, is a case which comes within this exception. The amendment 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. Eversince 1937, when they auction-purchased the properties in dispute they have consistently been endeavouring 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. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for KHAS possession and to pay the additional court-fees as in a suit for possession, but upon the condition that should pay to the respondents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent."
13. The principle laid down is that where the amendment does not change the nature of the suit and merely introduces additional relief which in the A facts, circumstances and pleadings should have been asked for, the amendment will be allowed. In the present case, it is an undisputed fact that the petitioners are in possession of the property, which was transferred to them by the Settlement Authorities. The only dispute is that in P. T. D. Issued to the respondent No, 1 in respect of another property, survey numbers have been mentioned which allegedly relate to the petitioner's property.
14. On the basis of these facts as stated in the plaint B the amendment sought is merely of technical nature and it will be inequitable if the petitioners are disentitled of their right merely on a technical plea, that no prayer for cancellation of the entries has been made by the petitioners. The petitioners do not wish the change any averment in the plaint. They only seek that a consequential relief may be added by way of abundant caution. Mr. Hassan Mahmood Baig has referred to Executive Engineer with Provincial Board Lahore v. Ails. Combined Traders Lahore where it was held that the question, whether amendment of pleadings be permitted is within the discretion of the Court and unless it is established that the discretion is perverse, no interference can be made. In the present case, as discussed above, the learned 1st Additional District Judge has not considered all the aspects of the case, but has merely confined himself to the technicalities and has therefore3 4 5 6 7 failed to exercise his discretion properly. The Revision Application is, therefore, allowed. The petitioners are allowed to amend the plaint on payment of cost of Rs, 750 to respondent No,
1. PLD 1961 Kat, 484 PLD 1975 Kar. 930 PLD 1959 Kar. 399 PLD 1963 SC 190 II M I A 4 AIR 1921 P C 540 1980 SCMR 1961