MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant revision petition, petitioner has assailed vires of judgment and decree dated 13.06.2019, passed by learned Additional District Judge, Lodhran, whereby respondents' appeal against judgment and decree dated 15.11.2017, decreeing the suit of petitioner, was accepted and suit was dismissed. Petitioner has also challenged order dated 13.06.2019, passed by learned lower Appellate Court, whereby application for production of additional evidence, filed by respondents, was allowed and petitioner's application seeking amendment in plaint was dismissed.
2. Brief facts of the case are that petitioner filed a suit for declaration along with permanent injunction against respondents alleging therein that petitioner and proforma respondents are legal heirs of Jandan and Kareem Khatoon, daughters of Charagh Bakhsh, whereas mutation No.36 dated 02.02.1924, regarding estate of Allah Wasaya (died issueless), brother of Charagh Baksh, in favour of respondents is illegal, void, against facts, ineffective upon rights of petitioner, and liable to be set-aside. The suit was contested by respondents by filing written statement. Learned Trial Court, after framing issues, recording evidence and hearing arguments from both sides proceeded to decree the suit vide judgment and decree dated 15.11.2017. Feeling aggrieved, respondents filed appeal before learned Additional District Judge, which was accepted and suit of petitioner was dismissed vide judgment and decree dated 13.06.2019. In appeal, respondents also filed an application for additional evidence i.e. certified copy of mutation No.34 dated 11.06.1923.
Subsequently, petitioner filed application seeking amendment in plaint regarding specific challenge to aforesaid mutation and consequent framing of issue in this respect. Both the applications were contested by respective parties by filing written replies. After hearing arguments from both sides, learned Appellate Court proceeded to dismiss petitioner's application however allowed production of additional evidence vide order dated 13.06.2019. Hence, instant petition.
3. Learned counsel for petitioner submits that under the law when permission to adduce additional evidence was allowed, learned Appellate Court should have permitted the petitioner to make corresponding amendment in the plaint but petitioner's request has arbitrarily been rejected, hence, impugned order is unsustainable in the eye of law.
4. Conversely, learned counsel for respondents defends the impugned order as well as judgment and decree.
5. Arguments heard. Available record perused.
6. The stance of petitioner while challenging the authenticity of mutation No.36 dated 02.02.1924 executed in favour of respondents was that Allah Wasaya and Charagh Bakhsh are sons and sole legal heirs of Elahi Bakhsh, the former dies issueless so his estate was to be devolved upon his real brother said Charagh Bakhsh and then to petitioner and proforma respondents being legal heirs of aforesaid Charagh Bakhsh. Whereas the stance of respondents in the application for production of additional evidence is that said Allah Wasaya (deceased) was sole son / legal hear of Elahi Bakhsh as is evident from inheritance mutation No.34 dated 11.06.1923, so, this document is necessary to be brought on record being a public document with the plea that said document was not available to respondents earlier. In written reply to aforesaid application, petitioner while negating stance of respondents submitted that Charagh Bakhsh was real son of Elahi Bakhsh and had illegally been deprived from inheritance, so, he be permitted to specifically assail aforesaid mutation by filing amended plaint.
7. It is evidently clear from the record that such plea of respondents is not mentioned in the written statement wherein they did not specifically assert that said Elahi Bakhsh left behind only one son i.e. Allah Wasaya, however simply stated that Shajra-e-Nasab, presented in the plaint, was not correct and even otherwise, if it was considered correct, Shariat Law was not applicable and mutation was sanctioned according to Rawaj-e-Aam. However, learned Appellate Court, while considering the new fact regarding mutation No.34 dated 11.06.1923 as relevant and expedient for just decision of the controversy allowed aforesaid document to be brought on record, however did not allow the corresponding request of petitioner for making necessary amendment in the plaint by specifically challenging the aforesaid mutation. The impugned order is not reflecting the support of valid lawful reasons for exercise of such discretion by learned Appellate Court. As the main controversy relates to distribution of estate of Elahi Bakhsh amongst his legal heirs, therefore, the proposed amendment, by no stretch of imagination, would not change the nature and complexion of the suit or relief.
8. Needless to say that while deciding application for amendment of pleadings, the Court has to keep in view the interest of justice and allow the case to run on correct lines for decision of real controversy. Moreover amendment can be allowed while ignoring delay whatsoever, even at any stage of proceedings in the trial, and in certain cases amendments can be permitted at the stage of appeal or even in the revisional jurisdiction, however, keeping in view the beneficial rule, that proposed amendment is expedient for the purpose of determining the real questions in controversy between the parties and it is not changing the nature of pleadings. An alteration in the relief does not ordinarily change the character or substance of the suit if it is based on the same averments, and if such an amendment is allowed, no injustice could be done to the other party.
Reference can be made to Mst. Ghulam Bibi and others v. Sarsa khan and others (PLD 1985 Supreme Court 345), Mst. Barkat Bibi v. Khushi Muhammad and others (1994 SCMR 2240), Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others (PLD 2003 Supreme Court 379), Abaid Ullah Malik v. Additional District Judge, Mianwali and others (PLD 2013 Supreme Court 239) and Manzoor Hussain and others v. Mst. Fazloon Bibi and others (2020 CLC 2001).
Furthermore, the occasion of amendment only arose upon acceptance of application for bringing a new document on record, thus, petitioner's request for amendment in such situation could not have been refused. Reference can be made to Muuhammad Saleem Naseem v. Additional District Judge, Dunyapur and 12 others (2021 CLC 87).
9. In view of the above, instant petition is allowed in the manner that impugned order dated 13.06.2019 to the extent of dismissal of petitioner's application seeking amendment in the plaint is set-aside and aforesaid application is accordingly accepted. Consequently, judgments and decrees of learned Courts below are also set-aside and the matter is remanded to learned Trial Court for decision afresh with the direction that all legitimate facilities shall be granted to both the parties to make necessary amendments in the pleadings and to produce evidence, if so desired.
The suit shall be decided afresh in accordance with law within a period of three months from the date of receipt of certified copy of this judgment. Office to transmit copy of this judgment to learned Trial Court immediately.