SYED ARSHAD ALI, J. This is a constitutional petition filed by the present petitioner against the concurrent conclusion drawn by both the courts below on the application of the present petitioner seeking amendment in the plaint.
2. The necessary facts relevant to the controversy in question of the case are that the petitioner as well as the respondents are the legal heirs of Malik Nasrullah Khan Afridi, who had died somewhere in 1990, as per contention of the learned counsel for the petitioner. The disputed property is the legacy of Malik Nasrullah Khan Afridi. The present petitioner, who is the son of Malik Nasrullah Khan Afridi, had filed a suit at D.I. Khan challenging the inheritance mutation of Malik Nasrullah Khan Afridi in favour of all his legal heirs bearing No. 883 dated 26.02.2005 on the ground that all the respondents had surrendered their, shares in favour of the present petitioner. In the suit, the entire edifice of the claim of the present petitioner is based on relinquishment deed dated 05.08.1999. The present petitioner had earlier filed an application for withdrawal of the suit, to file a fresh suit in order to add a further ground for attack on the said mutation that on 11.05.1991 the parties had executed a settlement whereby the present petitioner had given cash amount against their shares in the suit property. The said application was turned down by the trial Court vide order dated 17.09.2011 and the appeal of the present petitioner against the said order also failed.
3. Later, due to certain other litigation between the parties relating to the legacy of late Nasruallah Khan Afridi, this Court had ordered for the transfer of the case from. D.I.Khan to Peshawar. It was on 06.01.2015, the present petitioner had moved an application for amendment in the pleading with the following prayer: "Application for permission to make amendment in the plaint to the extent that the declaration sought by the plaintiff on the basis of deed of withdrawal/tamleeq dated 05.8.1999 be considered and read as acknowledgment of the earlier Jirga Award dated 11.5.1991 and the inadvertent word of withdrawal/Tamleeq Nama dated 15.8.1999 is to be rectified through amendment".
4. In essence, the present petitioner through the said amendment seeks to add a further ground of attack on the validity of impugned mutation that on 11.05.1991 the jirga under the Riwaj had settled the dispute between the parties through which, the petitioner had paid cash amount to the respondents in lieu of their shares in the legacy of late Malik Nasrullah Khan Afridi. The learned trial Court as well as revisional Court have concurrently dismissed the application of the present petitioner; hence, the present petition.
5. Qazi Jawad Ehsanullah, Advocate, learned counsel representing the petitioner has argued that the proposed amendment in the plaint though introduced at the later stage of The proceedings would neither change the character, colour or nature of proceedings, therefore, both the courts below have erred to disallow the said amendment for the reason that it was sought at belated stage. He has referred to the judgments reported in the cases of Mst. Ghulam Bibi and others v.
Sarsa Khan and others (PLD 1985 Supreme Court 345), Haji Sultan Abdul Majeed v. Mst. Shamim Akhtar (2018 SCMR 82) and Muhammad Fayya z v. Hafiz Liaqat Ali and 5 others (2020 CLC 1 184) by arguing that it is the consistent view of the superior courts that amendment in the plaint should be liberally allowed.
6. M/s Abdul Sattar Khan and Muhammad Shoaib Khan, Advocates learned counsel representing respondents Nos. 2 and 3 have disputed the assertion of the learned counsel for the petitioner by arguing that the proposed amendment was not only introduced at later stage but would entirely change the complexion of the entire plaint, besides, the proposed amendment in the pleading is contradictory to his earlier stance, which is not permissible under the law. The learned counsels have also argued that once the revisional court has exercised its jurisdiction in accordance with law then the constitutional court has no mandate to interfere in the concurrent findings of courts below. In support of their arguments, they placed reliance on Gul Roz and another v. Sargand and others (2003 CLC 116), Mst. Maryam Begum and 5 others v. Riaz Muhammad (2005 SCMR 1945), Mian Awdal v. Muhammad Jan Khan and 4 others (2009 CLC 40), Muhammad Siddique v. Abdul Rauf and 10 others (2012 CLC 1734), Tasawar Hussain v. Mst. Farzana Kausar and others (PLD 2015 Lahore 208), Syed Raza Abbas v. Mst. Sana Saeed Sattar and 2 others (2015 YLR 489) and Fazlur Rehman v. Mst. Shazia Bibi and 2 others (2015 CLC 116).
7. Mr. Jehanzeb Khan Muhammadzai, Advocate learned counsel representing respondent No.5 has argued in favour of this petition and has referred to the written statement filed on behalf of respondent No.2 wherein the respondent No.2 herself has acknowledged in her written statement the factum of the private settlement. The learned counsel has further argued that even the Apex Court in certain cases had allowed a contradictory plea for the purpose of amendment. In support of his assertion, he placed on the judgments reported in Muhammad Essa v. Mst. Haseena Begum through legal heirs (1989 SCMR 476), State of Haryana and others v. Ch. Bhajan Lal and 2 others (1994 SCMR 593) and Ch. Muhammad Aslam Khan through Legal Heirs and others v. Malik Sher and others (1994 SCMR 1637).
8. I have carefully perused the record and the case-law referred to by the learned counsel representing the parties.
9. The facts need no reiteration as stated above that in the plaint filed by the petitioner in 2005, he has challenged the inheritance Mutation No.883 dated 26.02.2005 on the ground that all the respondents had relinquished their shares though a relinquish deed dated 05.08.1999. The tenor of the deed suggests that it was in fact a gift on behalf of the respondents in favour of the present petitioner of their shares in the legacy of Malik. Nasrullah Khan. Through the impugned amendment, the present petitioner wants to introduce the alleged settlement deed dated 11.05.1991, according to which, the dispute between parties regarding legacy was settled by the alleged jirga members and the present petitioner was burdened to pay the amount equivalent to the share of each legal heirs to them in lieu of their share in the immovable property etc. Thus, the question arises as to whether this deed, which is unregistered one, can be introduced subsequently by amendment in the plaint almost after ten years of the institution of the suit. The relevant law on the subject is Order VI, Rule 17, C.P.C. which is reproduced as under:- "17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties".
10. The perusal of Order VI, Rule 17, C.P.C., clearly shows that amendment in the pleading can be allowed at any stage of proceedings for narrowing down the real controversy between the parties.
Although the relinquishment deed dated 05.08.1999 does not give any impression that the respondents have received the cash amount in lieu of their share in the legacy of Malik Nasrullah Khan, however, the written instrument dated 11.05.1991 claimed as a jirga award by the present petitioner envisages that the jirga has ordered the petitioner for payment of cash amount to the other legal heirs in lieu of their shares. At this juncture, the legality, proprietary and admissibility of this document is not a question before this Court as the same is subject to prove obviously the burden whereof is on the shoulder of present petitioner during trial.
At this stage, it is not proper to record finding as to whether the plea raised in the application for amendment is contradictory to the earlier pleas raised in the plaint or indeed it is an alternative claim because I leave it to the trial Court to decide this issue after recording evidence. Indeed the initial claim of the present petitioner rests on the surrender deed dated 05.08.1999 which in essence appears to be a gift deed whereas the jirga award dated 11.05.1991 is purportedly an evidence of the fact that the present petitioner has paid consideration to the respondents in lieu of their shares in the legacy of late Malik Nasrullah Khan. Obviously, the burden of this fact is on the shoulder of the present petitioner, however, at this stage, he cannot be deprived of this defence on mere technical ground notwithstanding that this plea prima facie, appears to be in conflict with existing claim of the petition because the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their right. All technicalities have to be avoided unless it be essential comply with them on grounds of public policy. Any system which by being effect to the form and not the substance, the facts substantive rights (and) is defective to that extent (Imtiaz Ahmad's case PLD 1963 SC 382). More particularly, the issue of private settlement is not new in the pleading and this issue has earlier been raised by respondent/defendant No.2 in her written statement, thus, at the moment, it cannot be assumed that this new plea is an afterthought attempt on behalf of the present petitioner.
11. In the case of Nazir Hussain Rizvi v. Zahoor Ahmad (PLD 2005 SC 787), the apex Court, while referring to its earlier various rulings on the subject, has elaborately laid down guideline for amendment in the pleading in the following words:- "There is no cavil with the proposition that the proposed amendment can neither change the complexion of the suit nor introduce a new cause of action. "No amendment will be allowed where its effect would be to convert the character of the suit". (Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. M.Y.
Titisee PLD 1993 SC 88 and moreso the fundamental character of the suit including the subject- matter and cause of action cannot be allowed to be substituted". (Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, Ghulab v. Fazal Illahi PLD 1955 Lah. 26). It is, however, to be kept in view that subject to certain exceptions "even alternative and inconsistent pleas may be allowed to be raised by way of amendment". (Ghulam Ali v. Pakistan PLD 1960 Kar. 581, Alauddin v. Central Exchange Bank Limited (PLD 1960 Lah. 446) "or a new ground of claim can be introduced because merely introduction of fresh matter cannot alter the nature of the suit and leave ought not be refused in such cases". (Muhammad Essa v. Hassenna Begum 1989 SCMR 476). A line of distinction is to be drawn between 'an alternative case' and 'an inconsistent case' which are neither synonymous nor interchangeable. A similar proposition was examined in case Budho v.
Ghulam Shah (PLD 1963 SC 553) wherein it, was held that no two facts can be said to be inconsistent if both could have happened and the test of inconsistency is that a plaint which contains both cannot be verified as true but a party can put forward more than one source of his right or defence in which case he is pleading in the alternative. The judicial consensus seems to be that an alternative or inconsistent plea can be raised but contradictory and mutually destructive pleas cannot be taken".
Similarly, the apex Court in the case of Haji Sultan Abdul Majeed v. Mst. Shahim Akhtar (2018 SCMR 82) elaborately deals with the issue in hand by relying upon the judgment of Nazir Hussain Rizvi's case (supra) wherein all the aspects/guidelines for allowing an amendment in the pleading was elaborately discussed. As a ready reference para-6 of the judgment is reproduced as under:- "As to the other ground that through the proposed amendment, a contradictory plea is being introduced which would change the entire complexion of the case, we are of the view that the execution of the disputed wills was challenged basically on the ground that Late Ghulam Jillani on account of his mental and physical health was not in a position to voluntarily execute such wills in a proper frame of mind. Therefore, keeping this plea in sight the wills were considered by the petitioners to be an outcome of undue influence and coercion. By taking such plea, it cannot be said that the petitioners also had first-hand knowledge of the execution of the wills by Late Ghulam Jillani himself. It was only when the claim of the respondents surfaced on the basis of the disputed wills, the plea of undue influence and coercion was taken keeping in view his bad state of health but it can also give rise to the belief that even in a bad state of health (which is to be proved in evidence) Late Ghulam Jillani may not have executed the wills himself and hence could be the result of forgery. So through the proposed amendment, all that the petitioners are seeking is verification of the signatures of Late Ghulam Jillani on the disputed wills. Therefore, we do not consider it at all to be a case of contradictory or mutually destructive pleas, which is being introduced through the proposed amendment. At best, it could be a plea in the alternative that can legitimately be taken in the circumstances of the case. When a plea in the alternative can naturally arise and can co-exist with the main plea, which was not taken in the plaint at the time of filing of the suit then such a plea can be introduced by seeking amendment in the pleadings."
Thus, even the inconsistent plea can be allowed to be raised in the pleading if it can co-exist with initial plea of the plaintiff.
12. In view of the above, I respectfully do not find myself in consonance with the findings of both the courts below, resultantly, this petition is allowed and as a consequence thereof, the petitioner would be allowed to amend his pleading in terms of his application for amendment, which he has filed before the learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.