C.M.No.1 of 2022 This is an application under VI, Rule 17 read with Order I, Rule 10(4) of the Code of Civil Procedure, 1908, filed by the applicant/petitioner No.1 Mst. Khair-Un-Nisa with the assertion that vide order dated 18.05.2004, on the pointing out of learned law officer that the tenants/allottees have not been impleaded as respondents, the applicant/petitioners' counsel sought time for impleadment; that as per record C.M.No.1820 of 2004 was filed by the present applicant seeking withdrawal of order dated 18.05.2004 thereby sought discharging the responsibility for impleadment of tenants on the ground that in the impugned judgment dated 13.05.1999 passed by the respondent No.1, in which Muhammad Akram and Ghulam Rasool, etc. claiming to be tenants of land in dispute and showing themselves to be entitled to allotment requested for grant of right of hearing which though was granted but the question of entitlement of these persons remained undecided. In this backdrop, Muhammad Akram and Ghulam Rasool, etc. approached District Land Reforms Authoriteis and their claim was dismissed; that the matter was assailed before the Land Commissioner, Bahawalpur which too was dismissed; thereafter revision petition was also dismissed by the Chief Land Commissioner Punjab vide order dated 30.04.2002 and writ petition bearing No.2192 of 2002 was also dismissed on 26.05.2004, therefore, in this scenario, order dated 18.05.2004 ibid was sought to be withdrawn/recalled. In the meanwhile, the titled writ petition was dismissed for non-prosecution on 27.10.2004, which was restored on 16.01.2013 subject to the condition that the petitioners shall first answer for the delay that occasioned in impleading necessary parties as respondents in the first instance. Thereafter, C.M.No.1 of 2013 was filed seeking impleadment of applicant. The present applicant filed C.M.No.337 of 2013 in compliance with order dated 16.01.2013 seeking impleadment wherein it was explained that the delay in impleadment was not intentional in as such as after dismissal of titled writ petition vide order dated 27.10.2004, a miscellaneous application was moved before Member FLC for allotment of land by M/s Abdul Aziz, Amir Hamza, Muhammad Arshad and Muhammad Amin, which was accepted by the Member FLC vide order dated 31.01.2008; that as the present applicant was not impleaded in the said application before the Member FLC therefore, it was not in the knowledge of the applicant that allotment in favour of the above said persons was ordered On 30.11.2015, the application bearing C.M.No.1-C of 2013 was allowed, where-after amended memo of parties was submitted but again the titled writ petition was dismissed for non-prosecution on 06.06.2016, which was restored on 17.10.2016 on acceptance of C.M.No.1 of 2016. First amended petition/memo of parties was filed impleading respondents No.5 to 9 as per order passed in C.M.No.337 of 2013 and respondents No.10 to 12 according to order in C.M.No.1 of 2013. Due to above said impleadment, the instant application seeking amendment in the titled writ petition to the following effect has been sought by the applicant: i. That after para No.16 a new paragraph allowed to be added as 16/A and read as under: "That after dismissal of Writ Petition vide order dated 27.10.2004 an application was moved by present Respondents No.5 to 8 before respondent no.9. Without notice to the present Petitioner, Respondent No.9 passed order dated 31.01.2008 whereby allotted the land in dispute to Respondents No.5 to 8. As the Writ Petition was restored vide order dated 16.01.2013 therefore, the allotment of disputed land to Respondents o.5 to 8 is hit by the principle of Lis Pendens. The order dated 31.01.2008 passed by Respondent No.9 is also illegal and unlawful therefore cannot sustain. ii. That a new paragraph to be read as para no.16-B allowed to added as under: "That it is the case of respondents Nos. 10 to 12 (C.M No.1/2013) that while filing C.M No.3372013 vide mutation No.1119 dated 18.03.2009 (Abdul Aziz) mutation No.l121 dated 18.03.2009 (Muhammad Arshad) mutation No.1122 dated 18.03.2009 (Muhammad Amin) mutation No. 1120 dated 18.03.2009 (Amir Hamza). The allottees/tenants subsequently alienated the property in dispute in favour of Respondents No.10 to 12 vide registered exchange Deed 21.12.2009. This record was so appended with C.M No. 1/2013 along with subsequent mutations in favour of Respondents No. 10 to 12.
Suffice in this regard is that Respondents No. 5 to 8 are already hit by the principle of Lis Pendens which is also squarely applicable on Respondents No. 10 to 12. iii. That in para 17 of the main writ petition second last line after the word "13.05.1999" the following be allowed to be added: "Order dated 31.01.2008 passed by Respondent No.9, allotment of land through mutations No. 1119, 1120, 1121, 1122 dated 18.03.2009 in favour of Respondents No.5 to 8, exchange deed dated 21.12.2009 and thereby mutations in favour of Respondents Nos. 10 to 12 are also impugned herein. iv. That a new Ground to be read as Ground No.11 allowed to added as under: "That in the above backdrop order dated 31.01.2008 passed by respondent No. 9 and thereby allotment of dispute Land through mutation No. 1119,1120, 1 121 & 1122 (dated 18.03.2009) in favour of respondents No.5 to 8 are hit by principle of lis pendence illegal & unlawful. Further exchange/alienation of disputed Land by respondents No. 5 to 8 through exchange deed 21.09.2009 in favour of respondent No. 10 to 12 and sanction of mutation thereby are violation of principle of lis pendence and also militates section 15 & 16 of the Land Reforms Act 1977. Therefore, all acts orders, alienation and allotments are illegal & unlawful. v. That in prayer clause in fifth line after the word "respondents No.l to 4 and" the following be allowed to be added: "Order dated 31.01.2008 passed by Respondent No.9, allotment of land through mutations No. 1119, 1120, 1121, 1122 dated 18.03.2009 in favour of Respondents No.5 to 8, exchange deed dated 21.12.2009 and thereby mutations in favour of Respondents Nos.10 to 12."
2. Heard.
3. It is a settled principle of law, by now, that an alternative or inconsistent plea can be taken but contradictory and mutually destructive pleas cannot be raised. In this regard this Court is guided by the recent esteemed judgment of the Hon'ble Supreme Court of Pakistan reported as HAJI SULTAN ABDUL MAJEED (DECD) through Mehboob Sultan and Habib Sultan and others v. Mst.
SHAMIM AKHTAR (DECD) through Mah Jabeen and others (2018 SCMR 82) wherein it has invariably been held: - "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. To hold this view, we are fortified by the judgment of this Court passed in the case of Nazir Hussain Rizvi v. Zahoor Ahmad (PLD 2005 SC 787) wherein it was held as under: - "6. 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. Jahangir Khan 1971 SCMR 395, Atlantic Steamer s Supply Co. v. m.v. Titisee PLD 1993 SC 88 and more so 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. Hasseena 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 plain 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."
4. Now, when we consider and look on the proposed amendment(s), on the said ratio, and read the same with the grounds taken in the Constitutional petition and impleadment of the respondents No.5 to 8 and 10 to 12 after acceptance of applications in this regard by this Court, it appears that the applicant through proposed amendment(s) only wants to add, amend and seek remedy against the said respondents, which amendment(s) is not destructive or contradictory to the already taken plea and even the same is not inconsistent or alternative plea, rather the fact already mentioned has been further elaborated in the proposed amendment(s).
5. In addition to the above, mere delay in filing of such like applications is not a good ground for refusal of the same, rather the essence of the ratio of above said celebrated judgment is that the proposed amendment may not introduce a new and changed case/claim and it would not likely change the nature, complexion and cause of action, but in the present case, as has been stated above, the position is otherwise. Allowing or refusing to allow amendment of pleadings is an act, which goes to the root of the case, because the parties cannot lead evidence beyond their pleadings and if the provisions of Order VI, Rule 17 of the Code of Civil Procedure, 1908 are not construed and exercised liberally, it would jeopardize case of the parties; in this regard reliance is placed on LAHORE DEVELOPMENT AUTHORITY and others v. SULTAN AHMED and another (2007 SCMR 1682), wherein it has been held:- "6. Allowing or refusing to allow amendment of pleadings is an act, which hits at the root of the attack or defence of a party, as the case may be. The parties cannot lead evidence beyond their pleadings and hence it affects the production of evidence as well. Ultimately, the case of a party, refused amendment in genuine cases, is most likely to be seriously jeopardized. Thus, the question of amendment in hand was not of such an interlocutory nature, which could subsequently, be rectified at the time of final decision of case. While declining to interfere on such grounds, the learned High Court has fallen into material irregularity."
6. So far as the arguments that the proposed amendments are based on mala fide intention, we are not in agreement with the learned counsel for the respondents on the same, rather as has been discussed above, the proposed amendments are nothing but an elaboration of the already pleaded facts; they do not change the claim, complexion and nature of the prayer made in the constitutional petition or the case/claim of the applicant/petitioners. Providing open ground to both the parties to play on the same is the myth of law, which is based on principle of audi alteram partem. In judgment reported as Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), the Supreme Court of Pakistan has held that:- "What has been stated above is, however, subject to a very important condition that the nature of the suit is so far as its cause of action is concerned is not changed by the amendment where it falls under the first part of rule 17 or the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed."
Moreover, in judgment reported as Semco Salvage Pte. Ltd. v m.v. Kaptan Yusuf Kalkavan and another (1993 SCMR 593), it has been held that:- "Over VI, Rule 17 empowers the Court to allow amendment at any stage of the proceedings for just decision of the case. The technicalities are to be avoided. The plaintiff's original cause of action is based on salvage service and award made subsequent to the filing of the suit needed the proposed amendment. It is directly connected with the cause of action. The amendment allowed by the learned trial Judge does not alter the nature of the suit either in form or in substance. The nature of an added claim in substance is the same. There is no change in the nature of cause of action. The nature, claim and cause of action have not changed. For resolving the entire dispute between the parties and saving them from multiplicity of proceedings, the amendment was necessary."
7. For the foregoing reasons, the application under Order VI, Rule 17 of the CPC, filed by the applicant is accepted and the petitioners/applicants are directed to submit amended constitutional petition.