1. ' IBADAT YAR KHAN, J.--In this appeal, the appellant/plaintiff has raised a grievance against an order passed by a learned Single Judge of this Court sitting on the original side of this Court whereby the learned Judge has allowed the respondent/defendants to amend the written statement by adding a new para. to the written statement which was filed earlier. This order was passed on respondents' application under Order VI, rule 17, C.P.C. The objection raised by the appellant is that the amendment sought by the Respondents and allowed by the learned Judge would completely change the complexion of the defence which the defendants had taken earlier.
2. That the plea raised by this amendment is a departure from the case which was set up by the defendants in the written statement and if the pleas of the original written statement and those raised in the proposed amendment are read together, they are self-contradictory and irreconcilable. The order allowing the amendment is beyond the scope of the provisions of Order VI, rule 17. As such the order is without jurisdiction and should be set aside and the amendment sought should be disallowed.
3. ' To recapitulate the facts it may be stated that appellants have filed a suit bearing Suit No. 101 of 1975 praying for a relief of specific performance of an agreement of sale of some 95 acres of agricultural land in Tapo Landhi, Taluka Karachi owned by the defendants which they had agreed to sell to the appellant/plaintiff under an oral agreement brought about between the parties through the good offices of a gentleman named Suleman. It is alleged in the plaint ' These few paras. of the plaint may be produced in extenso.
4. Para.
11. "That thus the agreement for sale was finalised and the defendants were required to perform their part of contract by completing the documents and getting the sale-deed registered on payment of the balance amount.
5. Para.
12. That the defendants having failed to perform their part of the contract were called upon to do the same by a registered letter, dated 17th of December, 1974 which was duly received by Defendant No.
1. True copy of the letter is filed herewith and marked as Annexure 'M'. That omission of expression "Limited" in the said letter, dated 17-12-1974 (Annexure 'N') were mere accidental inadvertant, uninten tional and through oversight.
6. Para.
13. That the letter dated 17th of December, 1974 as is contained in Annexure 'M' was replied by the defendants by their letter, dated 31st of December, 1974 wherein the agreement for sale of the land in question has been admitted as well as the receipt of rupees one lac as part payment of the total consideration but the total price has been disputed and the blame for the failure has been attributed to the plaintiff in so far as it is alleged by the defendants that the total price of the land in question was Rs. 6,00,000 and that the plaintiffs were required to pay Rs. 5,00,000 by 7-11-1974 which they failed to do."
7. ' In the above paras. reference is made to the notice from the plaintiff and its reply dated 31-12-1974 from the defendants. Both these letters contain important admissions but the reply of the defendants, dated 31-12-1974 sent through an Advocate has assumed importance because the contents have been relied upon in the written statement filed by the defendants in the suit.
8. ' In reply to the contentions raised in the plaint in paras. 11, 12 and 13 quoted here in above the defendants by para. 5 of the written statement filed the following reply which is rather important.
9. ' The defendants, for reasons better known to the draftsman of this W.S., did not give a parawise reply. They just mentioned paras. "6 to 17" of the plaint and gave the following short reply in para. 5 of the W.S. "6 to 17. With reference to the averments made in paras. 6 to 17 of the plaint it is respectfully submitted that the letter, dated 31-12-1974 sent by the defendant's counsel to the plaintiff's counsel copy whereof is attached to the plaint and marked Annexure "N" contains true statements of fact and anything contained in the plaint which is inconsistent with or in derogation to anything contained in the said letter dated 31-12-1974 is denied. It is further submitted that the defending owners of the land had authorised Defendant No.1 only to negotiate the sale of the land on the terms recapitulated in the counsel's letter (Annexure 'N') and would have executed a Power-of- Attorney authorising Defendant No. 1 to execute an Agreement to sell only after and if the sum of Rs.
10. 5,00,000 due from the plaintiff after collecting his cheque of Rs. 1,00,000 on 4-11-1974 had been paid by him by 7-11-1974 as per verbal agreement of the plaintiff with Defendant No. 1 whereof time was of essence."
11. ' Before reading the text of the letter, dated 31-12-1974 referred in para. 5 of the W.S quoted above let us forthwith look at the contents of the para. now sought to be added in W.S. and see whether the form and shape of the main structure of the case set up by the defendant would substantially remain the same or this addition would demolish and replace the original structure. Before we attempt the comparison by placing the two paras. side by side. It is proper to keep in mind the entire concept underlying this para of the W.S. quoted above. It contemplates that a Power-of- Attorney was yet to be executed and this appointed attorney was thereafter to perform some duties. Note the words that" Defendant No. 1 TO EXECUTE AN AGREEMENT TO SELL ONLY AFTER AND IF THE SUM OF RS. 5,00,000 DUE FROM THE PLAINTIFF AFTER COLLECTING HIS CHEQUE OF RS. 1,00,000 ON 4-11-1974 HAD BEEN PAID BY HIM BY 7-11-1974."
12. ' Now it is better to reproduce the text of the existing para. and the para. desired to be added...
13. ' The existing para. of W.S. Relevant portion.
14. "It is further submitted that the defending owners of the land had authorised Defendant No. 1 only to negotiate the sale of the land on the terms recapitulated in the counsel's letter (Annexure "N") and would have executed a Power-of-Attorney authorising Defendant No. 1 to execute an Agreement to sell only after and if he sum of Rs. 5,00,000 due from the plaintiff after collecting his cheque of Rs.
15. 1,00,000 on 4-11-1974 had been paid by him by 7-11-1974 as per verbal agreement of the plaintiff with Defendant No.1 whereof time was of essence."
16. ' The proposed amendment to be added now: "In the events that have happened and in the circumstances the parties were still at the stage of negotiation and no legal obligations attached to them. The parties were not of one mind on the material terms and did not agree to the same thing in the same sense. The subject-matter or the price was not identified or agreed to. The provisional arrangement was not final and the matter was not closed or concluded and there was no agreement or contract. There was no consensus ad idem. The alleged agreement was uncertain and vague and there were mutual mis apprehensions and is in any case void."
17. ' Whether the pleas raised in the two paras. placed juxtaposition above are a fact or a fiction does not fall to be determined at this stage. We have to focus our attention on a very simple matter and that is whether the version brought out in the one is the same and similar or contradictory and inconsistent with the other.
18. ' Carefully read, the para. already existing in the W.S. reveals that the "defending owners" had yet to execute a Power-of-Attorney authorising Defendant No.1 to execute an AGREEMENT TO SELL only after and if sum of Rs. 5,00,000 had been paid by him by 7-11-1972 as per verbal agreement of the plaintiff with Defendant No.1...."
19. ' With a change of phraseology the same position is articulated in the new para. now proposed to be added: The parties were still at the stage of negotiations and no legal obligations attached to them The subject-matter or the price was not identified or agreed to. The provisonal agreement was not final and the matter was not closed or concluded and there was no binding agreement or contract."
20. ' In our reading its only a difference of emphasis on one aspect in the former and on the other in the later. The gravamen of both is that everything was still in the melting pot and final bargain had not yet crystallised. The drafting stage of a written agreement had yet to be reached after a few hurdles had been crossed. As pointed out earlier there may be found fallacious and contradictions which would heavily weigh against the maker of this or similar statements but they would be examined at the proper stage. The present controversy lies within a short compass whether the two versions are so diagonally opposed to each other that they cannot co-exist together. If one survives it means the death of the other. Only in such a situation, application of the defendant should be dismissed. Otherwise the defendant is entitled to insert/add the new para. in his W.S. almost as a matter of right. And when I say this I mean that if the defendant could include or add this para. originally in his W.S. there is no legal sanction for the proposition that a right which he possessed at the time of framing his W.S. in his own way at his option and as he liked, this right is lost to him once he has filed the W.S. in Court.
21. ' Before we proceed to examine the scope of Order VI, rule 17, C.P.C. and discuss the considerations which should weigh with the Court at the time of exercising the power whether to allow or not to allow the amendment let us have a glance over the contents of para. 5 of the written statement which makes a mention of letter dated 31-12-1974. The para. is in the following terms:- " It is respectfully submitted that the letter, dated 31-12-1974 sent by the defendants counsel to the plaintiff counsel contains true statements of fact and anything contained in the plaint which is inconsistent with or in derogation to anything contained in the said letter dated 31-12-1974 is denied."
22. ' The learned counsel for the plaintiff has advanced an argument that this letter from the defendant should be read as a part of the written statement filed by the defendants and if it is found that the desired amendment is inconsistent with the contents of this letter then the prayer for amendment should be refused.
23. ' In the first instance this reply to the notice and is not and cannot be a part of the pleadings. It may at worst be treated as a previous statement made by the defendants. As the contents of this letter have neither been signed as required by Order VI, rule 14 nor verified as enjoined by Order VI, rule 15, C.P.C. it cannot rank at par with the wirtten statement. If something has been affirmed or admitted in this letter by the defendants this would be treated as their admission for whatever it is worth.
24. Such admissions made by a party in correspondence with the other do not form part of the pleadings. Nor the party is precluded from framing the pleadings according to the situation of the case as it exists at the time of going to the Courts. In our opinion the inconsistency for prurposes of an amendment postulated by Order VI, rule 17 must exist between the pleadings already filed and those desired to be added by way of amendment at a later stage as is the case before us.
25. 'In the earlier part of the judgment I have endeavoured to show that there is no inconsistency in the test of the W.S. and the text of B paragraph sought to be added now.
26. ' Now let us have a look on the case law to appreciate the right of a party to ask for amendment of his own pleadings and the power of the Judge to deal with such request. But first the rule itself which is as follows: "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."
27. ' The rule has come up for interpretation before different Courts at different times but B.Z. Kaikaus, J. a great jurist of our times has in his unique and characteristic style interpreted it in the case of Abdul Aziz v. The Multan Electric Supply Company Limited PLD 1958 Lah.
28. 614.
29. "Nor was the learned District Judge justified in refusing the application for amendment if he was of the opinion that without an amendment the plaintiff should not be allowed to take this plea. An amendment of the plaint is almost the right of a party when it relates to the cause of action on which the suit is based. Apart from exceptional considerations an amendment is refused only when it is not bona fide and the intention is merely to delay the case. If a plea could have been taken originally I do not see why, if it is raised bona fide, it should not be allowed unless it be that a question of limitation arises, the defendant having gained some valuable right which in the circum stances it may not be proper to deprive him of."
30. ' In an other case reported in PLD 1955 Lah. 26 a share was claimed in the property left by the deceased on the basis of being the widow of pre-deceased son. But later an amendment to the W.S. was desired to substitute this defence with another i.e. "and in the alternative J. took possession without semblance of right and acquired a title by prescription over it". Rahman, C.J. as he then was disapproved the order of the D.J. allowing the amendment and held: "An amendment which would displace the plaintiff's suit or would introduce a new and wholly inconsistent case must not be allowed despite the fact that the powers of the trial Court to allow amendment at any stage are fairly wide. Relying on Fazal Nur v. Bibi Rani and Ghulam Muhammad v. Mehta Chandras the learned Judge observed: 'The decisions were given in appeals but the principle laid down therein that one distinct cause of action cannot be substituted for another by an amendment of the written pleas is C of general application. The rule is that any amendment must be such as is either raised in the pleadings or is consistent with the case as originally laid ."
31. ' In an other case reported in PLD 1963 S-C 191 the Supreme Court allowed the plaintiff to add the consequential relief of possesion which he had failed to pray for in his plaint in a suit under section 42 Specific Relief Act. Mr. Hamoodur Rahman, J. dealing with the prayer for adding consequential relief observed at page 201.
32. "The Judicial Committee of the Privy Council Coonsistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali Khan v.
33. Mst. Thakooranee Rutta Koer and Charan Das and others v. Amir Khan and others. That this Court possess similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.
34. ' The present, in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when they auction-purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for Khas possession and to pay the additional court-fees as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent."
35. ' In another case Syed Akhlaque Hussain and another v. Water and Power Development Authority 1977 SCMR 284, the rule was examined by Supreme Court.
36. ' In this case plaintiff had filed a suit claiming certain sums of money on account of damage caused to the plaintiffs property by the defendant during his occupancy as a tenant. The plaintiff moved an application praying for permission to amend the plaint by joining WAPDA in the suit and adding some reliefs to show that possession of the house had been jointly delivered to the original defendant and WAPDA and "That the contract of lease entered into by the aforesaid firm was also on behalf of WAPDA". This application was dismissed by the Lower Court. Setting aside this order the Supreme Court allowed the appeal and held: "There is indeed a long line of judicial authorities laying down that amendment should be allowed liberally except when it causes injury to the opposite side. In support of this proposition, one may refer to Jharia Coal Co. of Dhanba Bihar v. Diwan Chand & Co. of Delhi AIR 1921 Lah. 367, Ma. Shwe Mya Maung v. Mo Nnaung AIR 1922 P C 249, Shamsud-Din v. Devi Das AIR 1923 Lah. 505, Kirpa v. Mt.
37. Chinti AIR 1923 Lah. 530, Babullal Choukthani v. Horiprosad Roy AIR 1944 Cal. 72, and Bashir Ahmed v. Qaiser All PLD 1973 SC 507.
38. ' As observed by their Lordship of the Judicial Committee, all rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.
39. ' In the case cited by Mr. Akhlaque Hussain from the Calcutta jurisdiction, it was observed that "of course, in one sense an application for amendment based on false allegations cannot be bona fide. That, however, is a matter for investigation at trial itself." These observations tend to show that the question whether the allegations made in support of the amendment are true or false, cannot be decided summarily at the time of considering the application made under rule 17 of Order VI of the Code of Civil Procedure, unless of course the matter is patent on the face of the record. More or less the similar observations were made in M.K. Krishna Rao v. Sri Gangadeswarar Temple AIR 1949 Mad. 433 and Pathikonda Gopala Rao v. Nagiri Pedda Kitamma AIR 1955 Andh. Para. 138.
40. ' It will be seen that the real question in deciding as to the propriety of allowing an amendment of the pleading is, to use the words employed in the relevant rule itself, whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. If so, then leave to amend ought to be allowed liberally, provided of course that it does not have the effect of setting up an altogether different cause of action."
41. ' Plaintiff learned counsel has cited a case Secretary to the Government of Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242. In this case the plaintiff a forest contractor filed a suit for declaration that the period of contract to fell trees in the forest and cast away the timber had been extended by the government. The Government filed W.S. accepting extention of the original period. Later the Government wished to resile from the position they had taken earlier and wanted to amend the W.S. accordingly. This application under Order VI, rule 17, C.P.C. seeking to withdraw the "admission" was rejected by all the Courts below and the S.C. affirming these judgments of the courts below held: "The learned Additional Advocate-General, however, contended that the said admission made in the written statement was factually incorrect; that in order to get rid of the same, the appellant Government had, therefore, filed in the trial Court an application under Order VI, rule 17, C.P.C. praying therein for the amendment of the written statement, but the same was wrongfully rejected.
42. I am afraid there is no force in this contention. It is well-settled that admissions made in a written statement have altogether different legal significance than admissions generally.
43. ' In this respect reference may be made to Order VIII, rule 5, C.P.C. which runs as under:- . ' Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: ' Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
44. ' Now the trial Court and the High Court both have essentially in the exercise of their discretionary jurisdiction, refused permission to the appellant Government to amend its written statement so as to enable it to withdraw the said admission. On my part, therefore, I see no reason'to take a different view, as the learned Additional Advocate-General has been unable to show that the view taken by the Courts below was either perverse or unreasonable."
45. ' An important case Ma. Shwa Mya v. Maung Mo Hnaung decided by the P.0 as long ago as AIR 1922 P C 249 is frequently and freely quoted by most of the judges dealing with Order VI, rule 17, C.P.C.
46. ' The plaintiff filed a suit for specific performance of a verbal agreement made in 1912 by the defendant with him for transfer of certain land for oil wells in place of the first agreement of 1903; and when the Court found the verbal agreement not proved, the plaintiff applied to amend the plaint by claiming damages for breach of the contract of 1903. It was held that this amounted to setting up a totally new and different case from the case which was set up in the plaint. The opinion of the Board was written by Lord Buck Master.
47. Few passages from this report.
48. "The provisions as to amendment are those that are to be found in the Code of Civil Procedure of 1908. S. 153 of that Code enacts that "The Court may at any time and on such terms as to costs or otherwise as he may think fit amend any defect or error in any proceeding in a suit: and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding" and by O.VI, r.
49. 17.
50. "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 question in controversy between the parties."
51. ' The real question in controversy between the parties in these proceedings was the existence and the character of an agreement alleged to have been made in 1912 for the delivery of certain sites of oil-wells specified and identified by the numbers stated in the plaint, which could only have been delivered in respect of that subsequent bargain. When once that contract has been nagatived, to permit the plaintiff to set up and estab lished another and an independent contract altogether would, in their Lordships' opinion, be to go outside the provisions established by the Code of Civil Procedure, to which reference has been made. It would be a regrettable thing if, when in fact the whole of a controversy between two parties was properly open, rigid rules prevent its determination, but in this case their Lordships think that the rule do have that operation and that it was not open to the Court to permit a new case to be made."
52. ' Before closing the discussion on the scope of Order VI, rule 17 two more cases deserve a mention which specifically define the expression "inconsistent plea" a term so frequently referred to in discussion when a prayer for amendment of pleadings is made.
53. ' One of the earliest cases is a case in which one Shahzad Begum filed a suit alleging that" the hibanama of 30th May, 1881 was a fabricated document, and that her alleged signature was a forgery." She died and her parents and daughter appeared on the record as her heirs and the proceeding continued. Issues were settled. Issue No. 2 was as follows: "Whether the hibanama on behalf of Shahzad Bibi is genuine and valid and executed with her knowledge and consent or whether it was manufactured without her knowledge and consent, or whether it was executed under undue influence ?"
54. ' The case went in appeal to the P.C. and Lord Macnaghten who wrote the judgment disapproved the issue on grounds of inconsistency in the pleadings. His Lordship observed: "In their Lordships opinion the later part of that issue ought not to have been admitted. It was absolutely inconsistent with the case made by the plaintiff. It only becomes possible on the assumption that the alleged cause of action is unfounded "
55. ' The above would show that inconsistency in drafting the pleadings should be avoided even at the initial stage. It is an inherent defect open to objection irrespective of the fact whether inconsistent pleas are raised in the original draft or desired to be included by way of amendment of the pleadings at later stages.
56. ' The same concept of inconsistent pleas and pleadings has been very ably discussed and analysed Kaikuas, J. is a case Ala-ud-Din v. Farkhanda Akhtar PLD 1953 Lah .
131. The learned Judge has examined the question in detail. It should be remembered that the bar to raise inconsistent pleas in confined to pure pleas of facts. Otherwise inconsis- tent or alternative positions are not only permissible but obligatory. If a party pleads one set of facts and omit to plead other set of facts though they may appear to be irreconcilable to each other, he would loose the chance and opportunity to seek any relief on the basis of the other set of facts (See section 11, C .P . C . Expl: I) .
57. ' In the instant case a woman had filed a suit for declaration that plaintiff was not married to the defendant and in case marriage was proved, for its dissolution on the ground that she had not attained puberty at the time of her alleged marriage and had repudiated the marriage on her attaining majority. It was held "This is not a case of inconsistent allegations of fact. None of the allegations destroy the other. . . If a woman is not sure whether she was in fact married or not she does not want the person concerned as a husband".
58. ' The criterion to determine whether the consistency is on pure allegations of facts within the personal knowledge of the party or is relatable to several set of facts put together out of which desired relief or reliefs may flow, is that in the former the pleadings cannot be verified being true, in the later, they can be safely verified without running the risk of making a false statement punishable for purgery. Suppose a person say "I am the son of B" and in the following paras. say "I am not the son of B" One of the two is obviously not true and such a pleading cannot be verified.
59. This is an inconsistent plea and cannot be permitted to remain whether initially pleaded or sought to be include by way of amendment. Now the relevant facts of the present case a bundle of facts are brought out by the defendant and a number of inferences are sought to be drawn out of the fabric formed by these facts. Unless it is shown that one set of facts is contradicting the other and as such both cannot be true, the application for amendment cannot be rejected. We find no such inconsistency in the two passages. The language of the rule does not only permit the defendant to amend his pleading but even to "alter" it. So long as the prayer for "amendment" or "alteration" is not based on a false or untrue statement of facts, it is the right of defendant to remodel, reshape and recast his W.S. The request should however be bona fide and should not cause prejudice to the plaintiff. None of these incidents are pointed out and the defendant cannot be denied to use weapons of his own choice in defending himself. The appeal is dismissed with costs.
60. ' Naimuddin J.--I agree.