Syed Ahsan Raza Kazmi, J. Through this Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the orders dated 14.07.2022 and 23.09.2022 passed by learned Courts below whereby his application for amendment in the plaint was partially allowed and certain other amendments were declined concurrently.
2. The brief facts of the case are that petitioner filed a suit for specific performance with permanent injunction against one Mst. Munawar Bibi through her legal heirs. The respondents contested the suit by filing written statement. The respondents along with their written statement also filed an application under Order XL rule 1 of the Code of Civil Procedure, 1908 ("the Code"), for appointment of receiver. After getting reply from the petitioner the learned Trial Court fixed the case for arguments on said application. In spite of arguing on the application, the petitioner filed an application under Order VI rule 17 of the Code seeking amendment in the plaint with the contention that during subsistence of stay order passed by learned Trial Court the respondents while violating the stay secured an inheritance mutation in their favour with the connivance of Assistant Director Land Record. In this application, petitioner also sought permission to challenge mutation No.1131 dated 03.07.2017 which is result of order dated 20.03.2017 passed by Additional Commissioner (Revenue) in revision petition filed by respondents 1(a and b) against Munawar Bibi. In the amendment application, the petitioner submitted that he also wished to challenge the order dated 20.03.2017 passed by Additional Commissioner (Revenue) on the ground that deceased Munawar Bibi along with her sister and father belongs to Fiqa Jafria. The respondents opposed this application by filing written reply and the learned Trial Court after hearing the arguments, partially accepted the application only to the extent of one mutation i.e. mutation No.1203 dated 01.04.2022, vide order dated 14.07.20222, however, it refused the remaining amendment(s) sought by the petitioner. Feeling aggrieved, the petitioner filed a revision petition before the learned Revisional Court which was also dismissed vide order dated 23.09.2022. Hence this petition.
3. Learned counsel for the petitioner contends that the petitioner is aggrieved of the above said both the mutations and under the law any aggrieved person can challenge any order which affects his rights. Adds that impugned orders are based on misreading and non-reading of material available on record as well as misapplication of law on the subject, therefore, same are liable to be set aside. Learned counsel for the petitioner while relying on judgments reported as Muhammad Ramzan and others vs. Liaqat Ali and others (2001 SCMR 1984), Dilshad Ali and others vs. Ahmed Khan and another (2007 CLC 441), Atta-ur-Rehman and others vs. Abdur Rashid and others (2016 MLD 533), Mst.Iqbal Fatima through special attorney vs. Khalid Naeem and 2 others (2017 YLR 2368), Haji Sultan Abdul Majeed (DECD) through Mehboob Sultan and Habib Sultan and others vs. Mst.Shamim Akhtar (DECD) through Mah Jabeen and others (2018 SCMR 82), Syed Altaf Hussain Shah and others vs. Multi Professional Cooperative Housing Society through General Secretary and 4 others (2020 CLC 1119) and Bashir Ahmed Anjum vs. Muhammad Raffique and others (2021 SCMR 772) contends that proposed amendments neither change the complexion of the suit nor introduce any new cause of action asserting that it is settled law that Courts should take liberal view while allowing amendment applications.
4. Conversely, learned counsel for the respondent vehemently opposed this petition arguing that inheritance mutation No.1131 and order dated 20.03.2017 were known to the petitioner at the time of filing of the civil suit, but he opted not to challenge them initially. Further, contends that deceased Munawar Bibi during her lifetime assailed the mutation No.1131 through a civil suit, but it was dismissed. No further appeal or revision was filed against the said dismissal order, Therefore, the order dated 20.03.2017 passed by Additional Commissioner (Revenue) has attained finality. That said suit was filed by the same learned counsel who has filed the suit out of which the present petition has arisen. Adds further that the proposed amendments would not only change the complexion of the original suit from one for specific performance of an agreement to sell to a suit for declaration and cancellation, but also revive the past and closed transaction, which is not permissible under the doctrine of waiver.
5. Arguments of learned counsel for the parties have been heard and record has been perused with their able assistance.
6. Before delving into the merits of the case, it will be beneficial to provide an overview of the case for a better understanding of the controversy involved.
7. The record reflects that one Nawab Bibi died issueless and her only surviving relatives were her real sister Munawar Bibi and the respondents No.1(a and b). Initially, her entire property was mutated in the name of her sister Munawar Bibi vide mutation No.936 dated 30.09.2010 asserting that Nawab Bibi belongs to Fiqa Jafria. Respondent No.1(a and b) filed an appeal against the attestation of said mutation which was dismissed, however, they filed revision petition before the Additional Commissioner (Revenue), Sahiwal which was accepted and mutation No.1131 dated 03.07.2017 was attested.
8. Returning to current matter, the petitioner filed suit for specific performance of agreements to sell dated 01.09.2010 and 08.03.2022 against the respondents, alleging that deceased Munawar Bibi had entered into an agreement to sell her property measuring 33 Kanals and 04 Marlas against total sale consideration of Rs.85,00,000/- of which an amount of Rs.7 millions was paid to deceased Munawar Bibi during the period of 2010 to 2017. The petitioner requested her to receive remaining sale consideration of Rs.15,00,000/- and mutate her property in his name, however, due to some litigation between deceased Munawar Bibi and her uncle Mehram Khan {father of respondent No.1(a and b)} the said land was not mutated in the name of the petitioner. The petitioner further alleges that on 06.03.2022 once again he requested the deceased Munawar Bibi through repsectables of the area for transfer of land after receiving remaining sale consideration and Munawar Bibi deceased while giving her assurance also executed a written agreement with the petitioner on 08.03.2022. Thereafter, she died and the respondents No.1(a and b) became her legal heirs, who did not honour the commitment made by deceased Munawar Bibi and the refusal necessitated the petitioner to institute the instant suit.
9. There is no cavil to the legal proposition that the Court always has the jurisdiction under Order VI rule 17 of the Code and enjoys vast discretionary powers to allow the amendments in pleadings at any stage of the proceedings. However, such powers are subject to certain conditions/limitations.
The main conditions/limitations are as following: Firstly, the amendments should not cause prejudice to the other side, meaning thereby that while allowing amendment(s) in the plaint the defendants' rights should also be kept in mind and no amendment should be permitted which is aimed at changing the complexion of the suit while introducing a new case based on different cause of action. Secondly, any right accrued in favour of other party would not be allowed to be snatched away by permitting any amendment in a cursory manner. Thirdly, if it is moved with mala fide intention or it is already in the knowledge of the party at the time of instituting the suit.
10. In the instant matter, it is an admitted fact that mutation No.1131 as well as order dated 20.03.2017 passed by Additional Commissioner (Revenue) was known to the petitioner, but he chose not to challenge the same in his suit. Reference may be made to para-2 of the plaint, which is reproduced hereunder:- In a number of cases this Court as well as the Hon'ble Supreme Court of Pakistan has held that one cannot be allowed to seek amendment regarding any fact which was in one's knowledge before filing of the pleading(s). Reliance can be placed upon judgments reported as Ijaz Mahmood and others vs. Manzoor Hussain and others (1988 SCMR 34) and Abdur Rashid alias Muhammad Rashid vs. Muhammad Hanif and 2 others (1994 SCMR 2035).
11. Furthermore, the proposed amendments not only substitute a new cause of action altogether different from the petitioner's previous alleged cause of action, but they also cause a serious injustice to respondents as order dated 20.03.2017 passed by Additional Commissioner (Revenue) has attained finality.
12. Bare perusal of the amendment application reveals that petitioner sought amendment only in the body of the plaint without seeking any amendment in the prayer clause. If for an instance the application of the petitioner is allowed, it would serve no purpose except wastage of precious time of the Court. The following observations were made in case law cited as Matwali Khan vs. Shah Zaman and others (PLD 1965 Azad J & K 26) and relevant extract therefrom is reproduced hereunder:- "A party desiring to amend his pleadings has to make an application in writing to the Court stating precisely the amendment he seeks to make in his pleadings and the Court should also pass a clear order showing the nature and extent of the amendment allowed. A pleading can be amended only to the extent allowed by the Court. No general prayer for an amendment can be made or allowed."
13. In view of the above, the petitioner is not entitled to seek amendments as the proposed amendments are not justifiable on numerous grounds i.e. (i) the proposed amendment was already in the knowledge of the petitioner at the time of institution of the suit, (ii) through the proposed amendment petitioner attempted to revive the past and closed transaction, (iii) the valuable rights accrued in favour of the respondents cannot be allowed to be snatched away, (iv) the petitioner is seeking general amendments without specifying them, and (v) proposed amendments are against the standards set by both this Court and the Hon'ble Supreme Court of Pakistan. The case law referred to by the learned counsel for the petitioner are distinguishable from the facts and circumstances of the present case. Therefore, the orders passed by both the Courts below being well-reasoned and error-free are not liable to be interfered with by this Court in exercise of its Constitutional jurisdiction. Consequently, this Writ Petition is dismissed with no order as to costs.
14. Before parting with this judgment, I observe that another suit regarding the suit property is also pending before Civil Court, Sahiwal and this Court while deciding W.P.No.27805 of 2024 on 24.05.2024 had already consolidated both the suits and directed the learned Trial Court to conclude the suits at the earliest preferably within a period of six months. However, due to the pendency of instant petition before this Court the stipulated timeline could not be adhered to.
Consequently, the learned Trial Court is now directed to conclude the trial of both suits at the earliest preferably before the end of May, 2025, ensuring expeditious dispensation of justice.