SHAHID WAHEED, J. It is a trite that technicality is a ploy to stultify the course of justice because its use does not unredeem the wrong and the right is left unenforced. The case at my hands is a best example of procedural gamesmanship and poses the question whether a person who knocks at the doors of the Court, hoping to find justice, be punished for mistakes, when it is common that human beings have a propensity to commit errors?
Should every slight aberration of the law , be visited with a denial of justice?
2. In this order , I am considering application filed by the unsuccessful plaintif f under section 115 CPC, alleging that his suit was illegally dismissed on technical ground by the Courts below . The matter arises in this way that on 7th August, 2006, the plaintif f instituted a suit for specific performance of an agreement regarding House No.323-C, Faisal Town, Lahore. Respondent No.1 filed his contesting written statement while respondents No.2 to 7 and 10 neither submitted written statement nor took part in the proceedings so they were proceeded against ex-parte.
Considering the pleadings, the Trial Court framed issues and fixed the date for recording the evidence. At this stage, respondents No.8 & 9 filed an application to become a party in the suit stating that they had bought the property . The application was granted vide order dated 7th of May, 2019 and the petitioner-plaintif f was directed to file an amended plaint by making the respondents No.8 & 9 as defendants. Against this order , the petitioner filed an application for revision before the Addl. District Judge, Lahore. As the interim relief was not granted in the revisional application, the Trial Court continued its proceedings. The petitioner , however , continued to pursue the revisional application and at the same time sought time from the Trial Court to file an amended plaint. The Trial Court granted the first opportunity on 30th May, 2019, the second on 26th June, 2019 and the third on 13th July, 2019. The fourth opportunity was given on 29th July, 2019 with costs of Rs.500/-, followed by the fifth opportunity on 21st September , 2019, the sixth on 26th September , 2019 and the seventh on 30th September , 2019. On 7th October , 2019 the petitioner 's revision was declined by the Addl. District Judge and the next day, on 8th October , 2019, the Trial Court without going into the merits of the suit, dismissed the same under Order XVII Rule 3 CPC on the ground of non-compliance with its order and non-filing of amended plaint. The petitioner was unhappy with the technical dismissal and appealed against the decree of the Trial Court but failed and the Addl. District Judge maintained the decree not only under Order XVII Rule 3 CPC but also under Order VI Rule 18 CPC through his judgment and decree dated 17th February , 2021.
3. The petitioner has now come before me under Section 115 CPC with the request to revise the proceedings of the two lower courts and the decrees issued under their judgments and send the case to the Trial Court for a fresh decision on its merits. The grounds on which this request has been made are that, as I understand, by the time the petitioner 's suit was heard, he was before the Addl. District Judge, with the prayer to quash the order to make subsequent purchasers (respondents No.8 & 9) a party to the suit, and that immediate upon its refusal, no opportunity to file the amended plaint was given and the Trial Court without examining the merits of his suit dismissed it on technical objection, relying on the provisions of Order VI Rule 18 and Order XVII Rule 3 CPC, which was totally inappropriate, and that even if there would have been some force in the technical objection that the petitioner 's conduct had been contumacious and he had unnecessary delayed the filing of the amended plaint, justice could not have been sacrificed, on the altar of the technicality which does not go to the root of the case, insofar as the fairness thereof is concerned.
4. The first thing that caught my attention was the Addl. District Judge' s observation that since the petitioner had not filed the amended plaint, adding subsequent purchasers as defendants despite having availed several opportunities, the Trial Court rightly closed his right under Order VI Rule 18 CPC. I was unable to understand at all how the Addl. District Judge could observe that non-compliance with the order made by the Trial Court under Order 1 Rule 10 CPC, could have resulted in the closure of the right to file the amended plaint, under Order VI Rule 18 CPC. So, I sought assistance from the respondents' lawyers, but they without citing any precedent, or canvassing any cogent argument, pleaded that the observation made by the Addl. District Judge was correct. I cannot agree with the observation made by the Addl. District Judge and it seems to me be the result of misunderstanding of the intent, scope and extent of the above two procedural provisions of the law. It is well settled position of law that during the trial of any suit the necessity for making amendment in the plaint arises on two occasions. First, when the plaintif f thinks that the material facts or material particulars already stated in his plaint require rectification or elucidation; or further facts or materials which are necessary for the purpose of determining the real questoins in controversy between the parties, he may accordingly amend the plaint but, of course, after getting leave of the Court. This type of amendment is allowed to be made under Order VI Rule 17 CPC so as to facilitate the plaintif f for the due presentation of his case, and that is why it is called voluntary amendment. Second occasion for amendment arises (as happened in the present case) when the Court on such terms as it thinks just, either of its own motion or on application, orders any person to be added as a defendant who ought to have been joined as a defendant or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon. In such eventuality the plaint, unless the Court otherwise directs, is compulsorily amended under sub-rule (4) of rule 10 of Order 1 CPC in such manner as may be necessary . It necessarily implies that it will not be sufficient to amend the cause title, but all consequential amendments in the body of the plaint should also be made so as to show the nature of claim made against the newly added defendant. Here it may also be noted that the nature of the above two types of amendment is not only different but also the consequences of failure to make such amendments after the order are also not the same. As regards the first type of amendment, the law provides that when the plaintif f obtains leave to amend his plaint, he must amend it within such time as is allowed by the Court while giving leave to amend, or, when no time is fixed by the Court, within 14 days from the date of order . If the plaintif f after obtaining leave to amend his plaint fails to amend it within such time, he shall not be permitted to amend it afterwards, but the failure does not render the suit liable to dismissal. The consequence of failure to amend the plaint, therefore, is that the case will go to trial on the original pleadings, but the suit cannot be dismissed. In simple words a Court has no power to compel a plaintif f to amend his plaint. Insofar as the effect of failure to make second type of amendment is concerned, I will discuss about it in the later part of this judgment; however , suffice it to say here that upon failure to1 make even such type of amendment by the plaintif f after order does not result in the straightway dismissal of the suit.
5. On being faced with the above position of law, the respondents' counsel tried to persuade me with the argument that if I do not approve the dismissal of suit upon failure of the plaintif f (petitioner) to amend the plaint as per requirement of Rule 10 (4) of Order I CPC, in the alternative, the appropriate course would have been to reject the plaint under Order VII Rule 11 CPC. With regard to this argument the counsel stated that he had a ruling made in Dr. Thakur Das & others v. The Preside nt, Municipal Committee of Simla (Punjab Record No.36 of 1890). I do not agree with this argument. I may at this stage point out that under section 54 of the old Civil Procedure Code (Act XIV of 1882) there was a special provision for rejection of the plaint on failure to amend the plaint, but there is no such provision in the present Code of Civil Procedure (Act V of 1908) and thus, the said ruling is of no avail so far as the point in question is concerned. Nevertheless it is true that Order VII Rule 11 of the present Code gives instances of the rejection of the plaint in cases of non-disclosure of cause of action, undervaluation of the relief claimed, insuf ficiency of court-fee or claim being barred by any law. It is also equally true that the above grounds for rejection are not exhaustive, and the plaint can still be rejected under the inherent powers of the Court for the reasons not specified in clauses (a) to (d) of Rule 11, but then, defect for which it is rejected should not be such as is curable by amendment and nothing more than an error of procedure. Considering the circumstances of the present case, I am of the opinion, that failure of the petitioner to amend the plaint after order was not a fatal defect constituting a ground for rejection of plaint and, at the most, it was a mere irregularity , and did not affect the jurisdiction of the Court, and could be cured by the Court exercising its suo moto powers.
6. The next question which arises for consideration is whether under the circumstances it was competent for the Trial Court to have dismissed the suit under Rule 3 of Order XVII CPC. It is argued on behalf of the respondents that filing of amended plaint in terms of Rule 10 (4) of Order I CPC was an act necessary to the further progress of the suit for which time had been allowed by the Court. The petitioner failed to perform that act and that, therefore, Rule 3 of Order XVII CPC was properly applied. Different precedents were also put forward to substantiate this argument, but from their study it is clear that the contentious issues involved in them were not related to the filing of the amended plaint, so I cannot rely on them to propose an answer to the present question. Nevertheless, I mulled over the above argument and I am not satisfied that the suit could be dismissed under Rule 3 of Order XVII CPC.
Fortunately , while writing this opinion my hands reached out to an old case wherein somewhat the same question was examined. That is a case of Rehman v. Ahmad Din and it was held therein that failure to amend the plaint and to pay costs of adjournment did not justify dismissal of the suit under Order IX, Rule 8 CPC nor could such dismissal be considered as one under Order XVII Rule 3CPC where there was no judgment on merits. Mindful of this principle, I am of the view that the respondents' arguments obviously overlook the words "the Court may, notwithstanding such default, proceed to decide the suit forthwith" . These words of Rule 3 suggest that the case must be one where inspite of the default of a party it must have been possible for the Court to come to a decision of the suit. The words "decide the suit" cannot be taken as tantamount to dismissing the suit for default. It can only mean decide the suit on merits on the material available before the Court. But in the present case the suit was in the very preliminary stage. Respondent No.1 had filed his written statement, ex-parte proceedings had been initiated against respondents No.2 to 7 and 10, though the issues had been settled on the basis of unamended pleading, but with the addition of respondents No.8 & 9 (subsequent purchasers), some new issues were yet to be framed; that evidence was yet to be recorded, therefore, there was no question of deciding the suit forthwith on merits. The obvious duty of the Court, therefore, was to proceed to try the suit and decide it on the merits by returning issue-wise findings. This was not done and the suit was dismissed without giving findings on any issue.
From the proceeding-sheet it does not appear that the petitioner-plaintif f absen ted himself from the Court and declined to go on with the suit. In these attending circumstances, it seems to me that the Trial Court did not apply its mind at all to decide the suit at least to the extent of respondent No.1 who had filed his written statement or those who had been proceeded against ex-parte. I, therefore, do not think, it will be right to say that justice had been done, and the Courts below acted legally under Rule 3 CPC of Order XVII CPC in dismissing the suit.2 3 4 5 6
7. What then is the position of law about the conduct of the petitioner which he demonstrated during the trial? How the Trial Court should have proceeded further? These are the questions to which I now turn my attention. Before looking for the answers to these questions, as a prelude, I would say that while observance of the rules of procedure is fundamental to the course of litigation for they provide the necessary framework for the achievement of justice between the parties, the Courts, at the same time, must also be aware that too rigid adherence to the rules in certain circumstances may inappropriately and unjustly deprive a party of his right. We cannot lose sight of the fact that lawyers do make mistakes while conducting their cases which ordinarily attract sanctions or penalties.
But in trying to give a life to substantial justice to live, some mistakes or errors which, if not fraudulent or intended to overreach, may be overlooked in order not to allow the strict compliance to suffocate the process of justice delivery . Judges must not act as judicial technicians and the Courts ought not to present themselves as a workshop of technical justice and thus, they must make an endeavour to grant reasonable opportunity to both the parties to litigation to put up their respective best cases. Now, from this standpoint, let us review the facts of this case and the provisions of procedural law applicable to them to find the answer to the above questions.
8. When I look at the circumstances of the present case, I realize that the petitioner has lost due to the mistake of his lawyer and his claim has not been appraised. It is an admitted fact that when the Trial Court had framed issues in the petitioner 's suit for specific performance of agreement, and the case was at the stage of recording evidence, the subsequent purchasers (that is, respondents No. 8 & 9) made an application for their impleadment as defendants stating that since they had purchased the property , they should be impleaded as defendants. The petitioner contested this application saying that the property was purchased during the trial and too in the presence of the stay order , therefore, the sale, if any, was void and there was no need to add subsequent purchasers as defendants. On consideration, the Trial Court granted the application and directed the petitioner under rule 10(4) of Order I CPC to add the names of subsequent purchasers and file amended plaint describing the facts related to them. It was compulsory to amend the plaint as per the order . As the petitioner was unhappy with the order , he went to the Addl. District Judge under Section 115 CPC to have it revised. He did not get any interim relief from the revisional Court and for this reason the Trial court did not stop its proceedings and granted the petitioner opportunities to file amended plaint. At this stage, it appears, that the petitioner 's lawyer gave him an improper advice that if the amended plaint was filed during the revisional proceedings, then perhaps the Trial Court' s order would attain finality , and that the petitioner , following the advice of his lawyer , did not file the amended plaint despite taking several opportunities with the clear and cautionary orders of the Trial Court. By all means this conduct was not good, but still it was not so that it be construed contumacious. If the Trial Court' s order was not suspended, then the petitioner must have complied with it and his lawyer should have known that, in these circumstances, obeying an order of the Court did not amount to acquiescence and did not estop the petitioner from contending that he could not be ordered to implead subsequent purchasers as defendants in the suit. However , the record suggests that the petitioner appeared before the Trial Court on every date and he never said that he did not want to participate in the Court proceedings, and that he had no malice in disobeying court orders in not filing the amended plaint. Since this seems to me to be a misunderstanding of the law, I do not think the petitioner should have been punished so harshly that not only he was deprived of the opportunity to properly present his case but also without examining the merits of his claim, his suit was dismissed solely on the ground of default and disobedience. In no way can it be said that justice has been done. Such decisions are never considered appropriate as they negate the principl e of fair trial which is a fundamental right under Article 10-A of our Constitution.
9. Let's now look at the way forward. It is quite clear from the record that on 7th October , 2019, the Addl. District Judge dismissed the petitioner 's revision and upheld the Trial court' s order to add subsequent purchasers as defendants, and that the next day the petitioner had the last chance to file an amended plaint in term of sub-rule (4) of rule 10 of Order I CPC before the Trial Court. Inasmuch as it was compulsory to make this amendment not only for the purpose of determining the real question in controversy between the parties but also to make it known to the newly added defendants that what claim had been made against them, the Trial Court was insisting upon the filing of amended plaint. It would have been better if the petitioner had filed the amend ed plaint in compliance with the7 8 order but he did not do so. This was an irregularity . Of course, there is no express provision in the Civil Procedure Code as to what steps the Court should take to cure such type of procedural irregularity . But this does not mean that the Court will take action as has been done in this case. It is now well settled that every Court is deemed to possess all powers which are necessary to do the right and to undo the wrong in the course of administration of justice. The law recognizes and leaves unfettered the inherent powers of a Court to act ex debito justitiae .
Following this principle, I am of the view that since the obvious duty of the Court was to proceed to try the suit and decide it on the merits, the Court in such like situation, particularly when it had got knowledge of all the matters upon which it was called upon to adjudica te, exercising its inherent and suo moto powers should have itself added the names of the subsequent purchasers (i.e. respondents No.8 & 9) in the cause-title and proceeded further in the matter treating the petitioner 's reply , which he had submitted to the application filed by the respondent No.8 & 9 under Order 1 Rule 10 CPC, as part of the plaint. By adopting this procedure, not only would the defendants (respondents herein) know what the plaintif f (petitioner) had made full claim against them, but there would have been no stumbling block in the trial and the case would have been decided on meirt but it was conveniently ignored by both the Courts below and thus, failed to exercise the jurisdiction that was vested in them by law to try the suit.
10. For what has been discussed above and to firmly secure the ends of justice, the revision sought for is allowed, both the impugned judgments and decrees are set aside and the case is reman ded to the Trial Court with the direction to give the petitioner one last opportunity to file the amended plaint and if he does not do so then take further steps following the procedure outlined above and decide the suit afresh in accordance with law. Since the conduct of the petitioner in not filing the amended plaint has resulted in undue delay, he will not only pay the costs that was imposed by the Trial Court but will also pay the additional costs of Rs.10,000/- Parties are directed to appear before the Trial Court on 7th September , 2021. Order VI Rule 18 CPC Section 151 CPC Mrs. Tomlinson v. Musammat Goran 60 IC 376 Govinda Goundar and another v. Ramien and others [AIR 1915 Madras 335 (1)]. Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) Messrs PAN Century Edible Oils SDN BHD through Authorized Representative v. Fatima Enterpr ises Ltd. (1999 MLD 3193 ) M.
Waseem Zakai v . Mst. Mumtaz Mirza and others ( 2000 YLR 453 ) Rahman v . Ahmad Din (AIR 1926 Lahore 571) Amanullah Khan and 3 others v. Akhtar Begum (1993 SCMR 504) Syed Haji Abdul Wahid and another v.
Syed Sirajuddin ( 1998 SCMR 2296 ) Muhammad Aslam v . Nazir Ahmed ( 2008 SCMR 942 ) Cropper v. Smith (1884) 26 Ch. D. 700 Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) Muhammad Azam v.
Muhammad Iqbal and others (PLD 1984 SC 95) Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051 ) Khurshid Ali and 6 others v . Shah Nazar ( PLD 1992 SC 822 ) Fargo Freight Ltd. v . Commodities Exchange Corporation and others (AIR 2004 SC 4109) Gaj Kumar Chand v. Lachman Ram (1911) 10 IC 503 Govinda Goundar and another v. Ramien and others (AIR 1915 Mad 335(1) Vice-Chancellor , University of Azad Jammu and Kashm ir, Muzaf farabad and 3 others v. Muhammad Shahzad Khalid (PLD 2001 SC (AJ&K) 21) Khalid Mahmood vs. Asghar Ali Bhatti (2005 CLC 1821 )