MUHAMMAD SAJID MEHMOOD SETHI, J.---Through instant appeal, appellant-bank has challenged the vires of judgment and decree dated 12.11.2014 (announced on 21.11.2014), passed by learned Single Bench of this Court, whereby appellant's suit for recovery of Rs.116 Million has been dismissed to the extent of respondents Nos.1 to 5, whereas partly decreed for an amount of Rs.14.995 Million to the extent of respondent No.6.
2. Brief facts of the case are that earlier appellant-bank filed suit for recovery of Rs.13,72,00,144/- as balance due upto 16.11.1998 along with liquidated damages of Rs.2,74,40,028/- etc. before the learned Peshawar High Court, Peshawar . The suit was contested by respondents, who raised objection with regard to jurisdiction, which objection was upheld by learned Peshawar High Court, Peshawar vide order dated 15.10.2003 and suit was returned to the appellant-bank, which was presented before learned Single Judge of this Court on 29.09.2004.
However , before it was informed by the learned liquidator of respondent No.7/ Messrs Delta Tyre and Rubber Company Limited that pursuant to orders of the learned Peshawar High Court, Peshawar dated 16.11.1998, the company was wound up and subsequent ly, an order of its dissolution has also been passed on 09.04.2007, and in the scheme of distribution in the liquidation of respondent-company , an amount of Rs.21.148 Million has been paid to the appellant, therefore, appellant had balance claim of Rs.1 16 Million.
The suit was contested by respondents Nos.1 to 6 and 8 to 14 by filing applications for leave to appear and defend the suit. Meanwhile, appellant-bank filed application for amendment in plaint for enlarging its claim of liability against respondents Nos.1 to 5/defendants Nos.10 to14, which was dismissed by learned Single Judge vide order dated 19.09.201 1. Feeling aggrieved, appellant filed appeal, which also met the same fate. Appellant also approached Hon'ble Apex Court but withdrew the petition vide order dated 12.01 .2016. Learned Judge Banking Court, vide impugned judgment and decree dated 21.11.2014 dismissed the suit to the extent of respondents Nos.1 to 5, partly decreed the suit for an amount of Rs.14.995 Million to the extent of respondent No.6 and proceeded to grant leave to defend to the extent of respondents Nos.8 to 10 and 11 to 14, subject to the condition that each of the said respondents shall furnish a surety bond of disputed amount i.e. Rs.14.995 Million with two sureties to the satisfaction of the Deputy Registrar (Judic ial) of the Court by 17.12.2014 and in case of failure, their application for leave to appear and defend the suit would be deemed to be dismissed. Hence, instant appeal.
3. Learned counsel for appellant-bank submits that learned Single Judge has misconstrued order dated 19.09.201 1, whereby amendment application was dismissed and wrongly presumed that suit against respondents Nos.1 to 5 has been dismissed, whereas aforesaid order simply dismissed the amendment application. He adds that respondents Nos.1 to 5 are guarantors and mortgagees, therefore, suit should have been decreed against them. He contends that under the principle of merger , aforesaid interim order being merged into final judgment, can be agitated and entertained in this appeal. In the end, he submits that impugned judgment and decree, being absolutely illegal and without lawful justification, is unsustainable in the eye of law .
4. Conversely , learned counsel for respondents defends the impugned judgment and decree.
5. Arguments heard. Available record perused.
6. Perusal of record shows that during pendency of the suit, appellant-bank filed application for amendment in plaint, which was dismissed by learned Single Judge vide order dated 19.09.201 1 by holding that since the principal debtor-company has already been wound up by the order of learned Peshawar High Court on 16.11.1998, therefore, appellant cannot be allowed to enlarge its claim against more respondents. The relevant portion of said order is reproduced hereunder:- "2. The present suit was transferred from the Hon'ble Peshawar High Court, where it was filed in 2001. The transaction pertains to the year 1994 when the charge documents were executed . The principal debtor company has been wound up by order of the Hon'ble Peshawar High Court on 16.11.1998. The present effort by the plaintif f to enlarge its claim of liability against more defendants is clearly an effort which is beyond time and outside the original claim filed by the plaintif f bank. C.M. dismissed."
7. The aforesaid order was assailed before learned Division Bench of this Court in R.F.A. No.244 of 2012, which was dismissed vide order dated 13.02.2014, being not maintainable against an interim order . Appellant approached the Hon'ble Apex Court by filing Civil Petition No.563-L of 2014, however , the same was withdrawn and dismissed accordingly vide order dated 12.01.2016. Resultantly , the above reproduced order attained finality . This issue could neither have been agitated at the stage of final hearing before learned Single Judge nor can this issue be raised before this Court. It is settled law that the parties cannot be permitted to go beyond what they had setup in their pleadings, and during judicial proceedings, neither a party can be allowed to adduce evidence in support of a contention not pleaded by it nor can the decision of the case rest on such evidence. Reference can be made of Abdul Haque and others v. Shaukat Ali and 2 others (2003 SCMR 74), Muhammad Wali Khan and another v.
Gul Sarwar Khan and another (PLD 2010 Supreme Court 965), Abrar Ahmed and another v. Irshad Ahmed (PLD 2014 Supreme Court 331), Combined Investment (Pvt.) Ltd. v. Wali Bhai and others (PLD 2016 Supreme Court 730), Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 Supreme Court 338), Shumail Waheed v. Rabia Khan (2021 MLD 252 DB Lahore), Harihar Prasad Singh v. Balmiki Prasad Singh [AIR 1975 (SC) 733) and Maqboolunnisa v . Mohd. Saleha Quaraishi [1998 (9) SCC 5851.
8. Undeniably , appellant-bank filed the application for amendment many years after the filing of suit. In the original plaint, respondents Nos.1 to 5, though arrayed as defendants Nos.10 to 14, were not shown anyway liable towards the appellant, but in the sought amendment, they were tried to be clubbed together along with the other defendants against whom initially the relief was sought in the plaint. No plausible explanation for the long delay and not seeking any relief against the defendants Nos.10 to 14 has been offered. Ordinarily , delay may not disentitle a person from seeking amendment in the pleadings, but the Courts can consider said fact in cases before them.
Reference can be made to Abdur Rashid alias Muhammad Rashid v. Muhammad Hanif and 2 others (1994 SCMR 2035 ), Bootay Khan and 12 others v. Allah Rakha and 43 others (2000 SCMR 1631 ), Messrs Trans Oceanic Steamship, Co. Ltd. and another v. Messrs Tayoob Moosa & Co. (PLD 1959 (W. P.) Karachi 399), Muhammad Essa v. Mst. Haseena Begum Through Her 7 Legal Heirs (1987 CLC 1723 ) and Munawar Mehmood and another v . Nadeem Siddiqui and others ( 2011 CLC 130 ).
In the case of Abdur Rashid alias Muhammad Rashid supra, the Hon'ble Apex Court has uphe ld the orders of the Courts below declining amendment in the written statement sought after a delay of seven years. The operative part of said judgment is reproduced hereunder:- "We also agree that proposed amendmen t as stated in the application is such which was within the knowledge of the petitioner and he could have easily mentioned it in the written statement which he did not do and there was no justifiable reason for him to wait for 7 years to divulge it for the first time so late. We are unable to see any flaw or legal infirmity in the order passed by the High Court declining interference with the Constitutional jurisdiction."
9. No doubt, the order of the learned Single Judge through which it had dismissed the application for amendment in the plaint, has merged into the final order , as argued by learned counsel for appellant and can be agitated in this appeal, however , such order cannot be interfered with unless it is shown to have suffered from illegality , infirmity or arbitrariness. According to settled law, it is the discretion of the Court to permit or refuse amendment in the pleadings, however , the Court is not C bound to allow the amendment in all the cases. Reliance in this regard can be placed upon Messrs Maroof Knitwear (Pvt.) Limited through Chief Executive and 8 others v. Allied Bank of Pakistan Limited (2004 SCMR 111), Abaid Ullah Malik v. Additional District Judge, Mianwali and others (PLD 2013 Supreme Court 239), Abdul Rasheed through L. Rs. and 7 others v. Muhammad Akhtar and another (2018 YLR 2482), Anees-Ur-Rehman v. Faysal Bank Limited through Manager (2019 CLD 1031 ) and Faisalabad Electric Supply Company Limited v . Munir Ahmad Ranjha and others ( 2020 CLC 68 ).
10. Learned counsel for appellant-bank has failed to point out any illegality or legal infirmity in the impugned judgment and decree, thus, no interference is warranted. Resultantly , instant appeal, being devoid of any merit, is hereby dismissed with no order as to costs.