' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question judgment dated 19-4-1979 delivered by the learned Additional District Judge, Gujranwala.
2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner Lal Muhammad and respondent No, 4 Mst Tahira Bibi who is his daughter are transferees of property No, BX-1-S-123 situate in Kasaira Bazar, Gujranwala to the extent of half share each. Muhammad Zahoor and Muhammad Sultan respondents Nos. 2 and 3 are the sons of the petitioner and brothers of respondent No,
4. The said respondents Nos. 2 and 3 obtained a decree dated 10-5-1973 against the petitioner and respondent No, 4 from the Court of a learned Civil Judge Third Class, Gujranwala for a declaration to the effect that they had become owners of the property aforementioned by payment of Rs, 20,000 as consideration therefore with the consequential relief of a permanent injunction restraining the petitioner and respondent No, 4 from claiming the ownership of the said property.
3. The petitioner and respondent No, 4 brought two separate suits for a declaration to the effect that the aforesaid decree dated 10-5-1973 was collusive, had been obtained by fraud and without notice to the petitioner etc. And was ineffective as against their proprietary rights in the said property. These two suits have been consolidated and are pending before Mr. Nabi Ahmad Civil Judge, Gujranwala.
4. In view of the averments in para. 3 of the plaint filed by the petitioner and the objection of respondents Nos. 2 and 3, Issue No, 3-B reading as under was framed : "Whether Lal Muhammad (petitioner) is of unsound mind. If so what is its effect ?"
5. The petitioner's evidence in the suit had almost concluded when the respondents made an application for treating the aforementioned Issue No, 3-B as preliminary.
6. Reply to the above application was filed by the petitioner. Para. 3 of the reply reads as under : {{URDU TEXT}} ' The petitioner thereafter made an application that the word "4" has inadvertently and on account of clerical mistake been omitted in para. 3 of the reply reproduced above and that the words{{URDU TEXT}}should be allowed to be amended so as to read "{{URDU TEXT}}
7. The learned trial Court, by its order dated 21-10-1978, in the light of the pleadings of the parties, came to the conclusion that the mistake sought to be corrected was not wilful and it allowed the reply to be amended as prayed for subject to payment of Rs, 35 as costs.
8. Respondents Nos. 2 and 3 feeling aggrieved went up in revision to the learned Additional District Judge, Gujranwala, who by his judgment dated 19-4-1979, accepted the same, set aside the order of the learned trial Court and dismissed the application of the petitioner for amendment/correction of the reply on the solitary ground that Order VI, rule 17 of the Code of Civil Procedure would not apply to any other application in a suit as the said application or reply thereto did not fall within the ambit of the word pleadings as defined in Order VI, rule 1, C. P. C.
9. Feeling dissatisfied with the above revisional order the petitioner has come up to this Court in the present constitutional petition.
10. The learned counsel for the petitioner contended, first, that without conceding that Order VI. Rule 17, C. P. C. Is not applicable to applications/replies the learned Additional District Judge fell into error by not considering that the learned trial Court could in exercise of the inherent powers under section 151, C. P. C. Allow the amendment to be made in the reply. He relied on K. S. Abdul Latif v. The Republic of Pakistan and 2 others PLD 1971 Quetta 77 and Ghulam Muhammad v. Mst. Sahiban PLD 1957 (W. P.) Lah. 624 ; ' secondly, that the application of the petitioner seeking amendment was not made under Order VI, rule 17, C. P. C. Nor did the learned trial Court deal with it as such and, therefore, the exercise of jurisdiction by the learned trial Court was not under Order VI, rule 17, C. P. C. He contended that since the exercise of jurisdiction by the learned trial Court was under its inherent power the learned Additional District Judge illegally interfered with the order of the learned trial Court under section 115, C. P. C. ; ' thirdly, that the second proviso to Order XII, rule 4, C. P. C. Could also be invoked by the learned trial Court for allowing the amendment if as asserted by the respondents the sought for averment in the reply was to be taken as an admission and that the learned lower Appellate Court having not taken into consideration the aforementioned provision while passing the impugned order acted illegally ; and ' lastly, that the learned Additional District Judge was incorrect in holding that Order VI, rule 17, C. P.
C. Is not applicable to applications inasmuch as by virtue of section 141, C. P. C. The same would be applicable not only to pleadings but also to applications in suits.
11. The learned counsel for the respondents submitted that there is only one provision for allowing amendment and that is Order VI, rule 17, C. P. C. Which has been correctly held to be inapplicable to applications filed in proceedings in a suit as the same by virtue of Order VI, rule 1, C. P. Q. Applies only to pleadings.
' The next contention raised by the learned counsel for the respondents was that no amendment of an admission could be made and what could only be done by the petitioner was to ask for withdrawal of the admission as laid down in Mrs. Parbati L. Sitlani and 2 others v. H. Hussain & Co.
And 2 others.
' The learned counsel for the respondents lastly contended that the error sought to be corrected by addition of the word. Was not clerical but was in line with the previous averment made in the plaint1 by the petitioner that he is a mentally disturbed person.
' It was also half-heartedly urged by the learned counsel for the respondents that the writ petition is not maintainable against the revisional order passed in exercise of the jurisdiction under section 115, C. P. C.
13. In reply, the learned counsel for the petitioner submitted that the judgment of the learned Additional District Judge impugned in the petition being, such which would attain finality if not called in question is open to challenge in the constitutional jurisdiction of this Court as only such orders passed under section 115, C. P. C. By the District Court may not be challenged in the constitutional jurisdiction against which any other remedy in the ultimate may be available.
14. Having consideration to the controversy involved I find that the order of the learned Additional District Judge has been passed only on the ground that the amendment was allowed by the learned trial Court in exercise of the powers under Order VI, rule 17, C. P. C. The learned Additional District Judge has obviously overlooked the other provisions which were available for allowing the relief in the attendant circumstances of the case, for example, Order XII, rule 4, C. P. C. The second proviso to Order XII, rule 4, C. P. C. Reads as under :- "Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just."
' The application of the petitioner for amendment of reply and the order of the learned trial Court in no manner show that the amendment had been allowed by the learned trial Court in exercise of its powers under Order VI, rule 17, C. P. C. That being so, the learned Additional District Judge erred in law in holding that the amendment had been allowed under Order VI, rule 17, C. P. C. And the said rule being not applicable to the case the amendment could not be allowed. He overlooked the aforementioned proviso to Order XII, rule 4, C. P. C. Which could be pressed into service for allowing the amendment. If it be assumed as asserted by the learned counsel for the respondents (though this assumption is not well-founded) that Order VI, rule 17, C. P. C. Is the only provision under which an amendment could be allowed and that, too, in the pleadings, it would mean that there is no provision for allowing amendment in applications/replies thereto that may be filed in proceedings in a suit and therefore the inherent jurisdiction under section 151, C. P. C. Could be resorted to for allowing amendment in such applications if the attendant circumstances of a case so warranted in the interest of justice. The learned lower Appellate Court also ignored to look into this aspect of the matter and its judgment impugned in the present petition is therefore liable to be reversed on this ground as well.
15. The other factor which has persuaded me to accept this petition and quash the order of the learned Additional District Judge is that be has not in any way found fault with the allowing of amendment by the learned trial Court on the merits of the controversy.
16. The learned counsel for the respondents has also not been able to show me as to what illegality has been committed by the learned trial Court in allowing the amendment nor has he been able to show that-the amendment could not be allowed on the merits of the case. The sought for amendment by addition of the word " when read in the totality of the controversy is obviously called for. In the interest of justice as the omission of the word which to me also appears to be on account of a clerical mistake makes the whole sentence not only unintelligible but also meaningless. The correction of such a situation by the learned trial Court being to advance the ends of justice could manifestly be not reversed by the learned Additional District Judge in exercise of the revisional jurisdiction, especially when, as pointed out above, the exercise of power for allowing amendment could be made under Order XII, rule 4, C. P. C. If the sentence was to be taken as admission and under section 151, C. P. C. If there was no provision available for remedying the inadvertent defect that had crept in. The challenge to the entertainment A of the present petition against the impugned judgment being not only half-hearted attempt of the respondents but is also without merit as it has been rightly pointed out by the learned counsel for the petitioner that if the impugned order had not been called in question in the constitutional jurisdiction it would have attained finality, and, thus, may have caused grave prejudice to the rights of the petitioner.
' In view of the foregoing, accepting this writ petition, I declare that the judgment passed by the learned Additional District Judge on 19-4-1979 was without lawful authority and accordingly quash the same.
' There will, however, be no order as to costs. PLD 1963 (W, P.) Kar. 397