' This second appeal raises, among others, ordinarily the controversy of amendment of written statement by introduction of a new defence, at this stage, to defeat the pre-emptible right of the plaintiff respondents.
2. The suit land was purchased by the appellants from one Gul Nawaz Khan through a registered sale-deed. The alienation was pre-empted by Ghulam Haider, father of the vendor, on the basis of relationship. Muhammad Khan also pre-empted the sale by virtue of his relationship with the vendor and being a co-sharer in the suit land. The suits of the rival pre-emptors were consolidated and disposed of by single order. The prior right of purchase of Ghulam Haider was admitted by Muhammad Najib Khan as well as by Muhammad Malik, vendee, in their statement as witnesses.
The prior right of purchase claimed by Muhammad Najib Khan was equally admitted by Muhammad Malik, vendor, who accepted the claim of the pre-emptor in his personal capacity as well as attorney of Manzoor Hussain, the second vendee. As Ghulam Haider failed to deposit the decretal amount within the requisite period, Muhammad Najib Khan, the rival pre-emptor, availed the decree by complying with the terms and conditions of the decree. Muhammad Malik, subsequently, feeling dissatisfied with the decision of the trial Court, preferred an appeal before the District Judge and arrayed Manzoor Hussain as co-respondent. During the pendency of %first appeal, on 3rd December, 1977, Manzoor Hussain moved an application to set aside the ex parte proceedings and also filed cross-objections. On 29th June, 1978, another application accompanied by photostat of the passport was submitted in support of the cross-objections. In these petitions and cross-objections, Manzoor Hussain explained his absence from the country with effect from August, 1974 to October, 1977 and alleged misrepresentation in the subordinate Court. He claimed ignorance of the proceedings of the trial Court and alleged that he authorized no one to prosecute his defence, as such, the proceedings were carried in his absence without allowing opportunity of hearing. The learned District Judge, nevertheless, dismissed the appeal on merits.
3. The present appeal has been preferred jointly by the vendee in which they have challenged the finding of the subordinate Courts as misconceived, resting on wrong appreciation of the merits of the parties and misrepresentation of Manzoor Hussain, appellant. An application has been moved on behalf of Manzoor Hussain, appellant, seeking permission for amendment of the written statement to introduce the defence in the manner that the vendee-appellant is a Mangla Dam affected and displaced person, as such, the sale of the land to the extent of his share was not subject to pre-emption.
4. It is relevant to state here that the Government, in exercise of its powers under section 6 of the Right of Prior Purchase Act, by issuance of notification, exempted the sale of land in favour of Mangla Dam affected and displaced person, certified to be so displaced by the Commissioner, Mangla Dam Affairs. Manzoor Hussain, appellant, claims to be a Mangla Dam affected and displaced persons and a photostat of the certificate issued by the Commissioner Mangla Dam Affairs, is appended with the application. In view of the notification relating to exemption of sale of agricultural land from the operation of the law of pre-emption, it is desired that the appellant (Manzoor Hussain) may be allowed to raise the proposed defence to defeat the suit of the pre- emptor.
5. Ch. Muhammad Taj, the learned counsel for the appellants, frankly conceded that unless the proposed amendment was allowed to be introduced in the written statement, on merits, the appellants had no case. In support of the prayer for amendment, the aforelisted facts were reiterated and emphasized that the introduction of amendment would neither cause a change in the complexion of the defence nor affect the position of the pre-emptor as, according to the learned counsel by the time no vested right has accrued in his favour. The contention was opposed by Raja Muhammad Siddique Khan, the learned counsel representing the pre-emptor, who argued that at this stage when a Vested right has accrued to the pre-emptor in the shape of decree, permission for amendment to enlist a fresh defence would not be just. The learned counsel for the parties cited various authorities in support of their respective contentions.
6. The relevant provisions of Order VI, rule 17, C.P.C. postulate that the Court may at any stage of the proceedings, allow either party as alter or amend his pleadings in such manner and on such terms as may be just, and necessary for the purpose of determining the real questions in controversy between the parties. The law recognises amendment of pleadings as the Court may consider: -
(i) just; and
(ii) necessary for the purposes of determining the real question in controversy.
' The terms "just" and "necessary for the purposes of determining the real question in controversy" have received wide interpretation. But it has not been deemed expedient to confine the scope or application of these conditions to a definite or specific class of pleadings. The consensus is that the question of amendment of pleadings may be settled in the light of facts and justification of each case, but within the sphere of these conditions. The term "just" includes the following considerations: -
(i) The proposed amendment in the pleadings should be fair and bona fide;
(ii) it may not be inconsistent and in conflict with the pleadings enough to be amended;
(iii) it may not introduce a new cause of action or defence, rendering visible change in the character and complexion of the case; and
(iv) it may not -amount to defeat a legitimate right of the opposite party.
' The phrase "necessary for the purposes of determining the real question in controversy" postulates that the proposed amendment should be ancillary and akin to the controversy in issue which, if not allowed, may result in multiplicity of proceedings. It further enjoins that the proposed amendment should be necessary and relevant for the conclusive determination of the case.
7. Before taking into consideration the leading facts of the case in hand, it will be useful to have an appraisal of the leading reports cited at the bar in support of the respective contentions.
8. In Atta Muhammad's case PLD 1962 Lah. 803, the amendment in question was sought to be made in the plaint by introduction of the claim that defendant's possession had commenced with the permission of the plaintiff as a sub-tenant or a co-tenant and had been converted into adverse possession only a year before the suit. In view of the facts raised in the pleadings of the parties, amendment at the stage of second appeal was allowed, as the proposed amendment was found just and necessary for the purpose of determining the controversy between the parties.
Nevertheless, it was observed as under:- "Three considerations are to be kept in view. The first and the foremost consideration is as to whether the proposed amendment is necessary for the purposes of "determining" the real question in controversy between the parties and in case the Court thinks it is so, the rule makes it imperative on the Court to allow such amendment. The second is whether the amendment would introduce a totally different, new and inconsistent case, and, as a general rule, the Court should not allow such amendment. The third is whether the proposed amendment is made in good faith and is not unduly belated. As a general rule, leave to amend will be granted so as to enable, the real question to issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite party."
9. Krishnaswa my Iyer's case AIR 1961 Ker. 110 is also relevant to the proposition. It was a case for recovery of the amount reserved in a registered sale-deed. The defendant averred that the price in the sale-deed happened to be fixed because of misrepresentation made by the vendor as well as subsequent agreement of the vendor to accept the lesser amount in full satisfaction. On failure of the defendant to prove the plea, he moved an application for amendment of the written statement, by stating that the property was purchased due to misrepresentation and that he was entitled to rescind a contract and get back the sale price and value of the improvements. The prayer was disallowed in the following manner:- "Where the amendment of the written statement is not bona fide and if allowed would result in an entirely new case being made out on facts which according to the defendant were available but not pleaded and a fresh suit on the amended claim would be barred by limitation on the date of application for amendment, the order allowing amendment is unsustainable in law and should be set aside."
10. In Mehram Shah's case PLD 1966 A J K 59, a suit for declaration was instituted, claiming title of the plaintiffs in the suit land, by virtue of their relationship with the last owner. It was averred that the vendor-deceased being a limited owner, had no right to transfer the ancestral property to a stranger without any legal necessity, as such the transaction was ineffective and inoperative on the reversionary rights of the plaintiffs. The proposed amendment was sought to enter correct particulars of survey numbers of the suit land as well as addition for cancellation of the sale-deed of the land in dispute. It was held that the proposed amendment was sought to be made to remove the formal defect as it neither changed the cause of action nor complexion of the suit, as such it was allowed.
11. In Qazi Nazirul Islam's case PLD 1968 Lah. 315, the subordinate Court declined permission for amendment on account of delay. The finding was set aside with the observation that the delay, no doubt, was a relevant factor but not the sole factor. The inconvenience caused to the opposite party could be compensated by grant of costs. In the circumstances, it was held that refusal to amendment was not justified.
12. In Haji Bahawal Khan's case PLD 1971 B J 11, the proposed amendment pertained to the plea of adverse possession, in a suit for possession. In the light of the facts of that case, it was held that there should be no serious objection to the grant of application for amending written statement, by raising the plea of adverse possession alone.
13. In Ashraf Khan's case PLD 1975 A J K 32, the defendants in their written statement, admitted the possession of the respondents in the suit land. Subsequently, on failure to establish the defence, an amendment was proposed to be made to allege adverse possession of the defendants in the suit land. The plea was rejected in the circumstances: - "The next point that arises for decision, is as to whether the application under Order VI, rule 17, C.P.C. filed for amendment of the written statement be allowed or not. It has been correctly pointed out by the learned counsel for the respondents that if the proposed amendment is allowed, it would amount to setting up of quite an inconsistent defence with that of original besides being unjust to the respondents. It is rightly pointed out that the appellants had conceded in their written statements, that the possession of the land was with the respondents and now if they are allowed to amend the written statement to the effect that they are in adverse possession it will amount to allowing them quite contradictory stand to the one they had taken in the trial Court. Moreover, it would also amount to taking away a valuable right from the respondents which had accrued to them during this protracted litigation throwing open the case afresh. I, therefore, refuse to allow the amendment so far on the question of adverse possession is concerned."
14. In Syed Najamul Hassan's case, 1980 CLC 1866, broad principles of alteration and amendment of the pleadings were laid down in the following manner:- "The provisions in Order VI, rule 17, Civil Procedure Code empowered the Court to allow either party to alter or amend the pleadings at any stage of the proceedings as may be necessary for the purpose of determining the real question in controversy between the parties and the power should be liberally exercised so as to advance the interests of substantial justice. As a general rule, amendment should not be refused if it occasioned no harm to the opposite party except such as can be sufficiently compensated by costs, the party asking for amendment had acted in good faith, the amendment did not take away from the other side a legal right which had accrued to him by lapse of time and the amendment did not change the character of the suit. These are the widely accepted guiding principles for exercise of discretionary power under Order VI, rule 17, Civil Procedure Code but these are subject to several equally well-recognized exceptions. Leave to amend the pleadings will be refused where the amendment would introduce a totally different, new and inoonsistent case or the amendment will substitute a new cause of action for the original cause of action."
15. In Muhammad Suleman's case PLD 1985 SC (A J & K)13, the learned Chief Justice, on going through the leading case on the point, laid the leading principles controlling the alteration and amendment of the pleadings in the following words:- "It is settled that amendment is to be allowed when the circumstances so warrant though I believe that the Courts should be liberal to allow amendment. It is also undoubtedly true, as contended by Maulvi Sirajul Haq, that the defence put forth would not change the character of the defence but I cannot lose sight of the fact the appellants in their written statement came with a case that Mst.
Zahoora Begum was competent to transfer the suit property. The amendment now seeks that the sale-deed was, in fact made by Ghulam Rasool who despite disposal of the property to the minor sons by way of gift continued to retain title in the suit land. This sort of amendment would totally change the character of the defence and cannot be allowed as it would prejudice the respondent at this late stage. In the first instance the gift deed executed in favour of the minors creates for them a title in the suit land. Therefore, the disposal of the property by the mother cannot bind them.
May be that the father was behind the transaction but it would hardly make any difference because this method may be considered to be a legal device to avoid the rigor of law, but it cannot invalidate the gift. Whatever is now being said by the appellants if admitted to be correct, it is only a device legally devised to get maximum out of the appellants. The appellants, however, are at liberty to seek any other remedy under law."
' It is noticed in the aforelisted cases that amendments in the pleadings were allowed or refused in the light of the peculiar facts of such case. Nevertheless, the learned Judge adhered to the considerations postulated by the provisions of rule 17 of Order VI, C.P.C. In some cases, it was held that the amendment may be allowed liberally but at the same time it was observed that the liberal approach should not exceed the requisite limit of justness of the cause and flout a vested right of the opposite party. Likewise, it was deemed expedient to record that the proposed amendments should not be inconsistent and in conflict with the pleadings sought to be amended. In Sulaman's case wherein amendment in the written statement was sought to introduce the fraud, the learned Chief Justice of the Supreme Court of Avid Jammu and Kashmir declined such amendment as, in his opinion, the proposed amendment was inconsistent with the pleadings of the defendants.
16. In the present case, it is noticed that the defendant-vendees confined to repudiation of the claim of the pre-emptors. This was done despite the fact that the vendees possessed first hand knowledge of the defence proposed to be introduced through amendment. May be that Manzoor Hussain was not present in the country and was not in a position to extend advice to the counsel for raising defence in the written statement, but the fact remains that Muhammad Malik, co- vendee, had equal knowledge of the fact that Manzoor Hussain was a Mangla Dam affected and displaced person. The sale-deed contained a recital to the effect that Manzoor Hussain, vendee was a Mangla Dam affected person. A copy of the sale-deed was also appended with the plaint.
Thus, Muhammad Malik, at the time of filing the written statement again, had an opportunity to know that Manzoor Hussain, co-vendee, was a Mangla Dam affected and displaced person. The appellants have failed to render account of gross negligence and failure to raise the defence at initial stage.
17. The other factual aspect of the proposition is that Manzoor Hussain ,appeared personally before the District Judge where he moved two applications and filed cross-objections. It is not explained as to how and why the proposed amendment was not sought to be made before the District Judge. Apart from that the applications and cross-objections equally find no mention that the vendee-appellant was a Mangle Dam affected and displaced person. Failure to avail opportunity before the District Judge is not explained satisfactorily.
18. It is undeniable that the pre-emptor by acquiring decree in his favour is clothed with a vested right. At present he is not only the claimant of prior right of purchase but a decree exists in his favour. Thus, at the stage when a right has already accrued in favour of the pre-emptor, permission to introduce a new defence, obviously, shall amount to defeat the successful pre- emptor.
19. The claim of the vendee-appellant of his being a Mangla Dam affected and displaced person, is a question of fact. It is correct that the appellant has produced a photostat of the certificate showing him Mangla Dam affected and displaced person but the certificate by itself is not a solid proof to exempt the sale in question from the operation of pre-emption. The certificate being rebuttable, the acceptance of prayer for amendment of the written statement, obviously, would result in setting aside the finding of the subordinate Courts and reopening of the entire case. This, in well-considered view of this Court, shall not only result in great hardship to the opposite party, but it would be likely to damage the vested right of the pre-emptor, unlikely to be adequately compensated.
20. The aforelisted considerations lead to the conclusion that the amendment of the written statement by introduction of the requisite defence, by no stretch of imagination, was just and equitable, as postulated under the provisions of Order VI, rule 17, C.P.C. The proposed amendment is, therefore, disallowed.
21. On merits, as mentioned earlier, the learned counsel for the appellants disclosed that in presence of admission, by Muhammad Malik of the superior right of the pre-emptor, it was not conducive to exercise reappraisal of the evidence of the parties. As the finding is not assailed on merits, there is no use to go through the exercise of recounting the evidence of the parties.
22. In view of the aforesaid position of the case, the appeal being devoid of force, is hereby dismissed. However, the parties are left to bear their own costs.