' The petition is preferred against an order of the Sub-Judge, Dhirkot, passed on 5th September, 1984, whereby an application of the defendant-petitioners for amendment of the written statement, was rejected.
2. Muhammad Yaqub Khan and others, instituted a suit for possession of the suit land measuring 6 Kanals 17 Manias, out of Survey Nos. 224/1 and 263, by virtue of their title. The suit was instituted on 3rd August, 1968. It was averred that the suit land was in owhership and possession of the plaintiffs and in near past, defendants were allowed to occupy the land. Now on seeking repossession, defendants denied the title of the plaintiffs and refused to deliver the possession of the suit land.
The claim of the plaintiffs was repudiated by the defendants who alleged possession of the suit land in their own right and further claimed their possession as adverse to the plaintiffs. Akbar Khan and others also brought a counter-suit for declaration on the basis of adverse possession over the suit land. In counter-suit of Akbar Khan and others, Muhammad Yaqub Khan and others, plaintiffs, denied the claim of Akbar Khan etc. and averred that the suit land was in the ownership and possession of Muhammad Yaqub Khan and others who mortgaged the suit land in the sum of Rs.106 and transferred the possession thereof to Akbar Khan and others. It was alleged that Muhammad Yaqub Khan and others were entitled to decree for possession on redemption of the mortgage of the suit land. Both the suits were consolidated and tried together. The suit of Muhammad Yaqub Khan and others was dismissed on 31st December, 1973 and the counter-suit was decreed. On appeal, the learned District Judge set aside the finding of the subordinate Court, framed additional issues and restored both suits to the file of the trial Court for fresh decision on merits. The additional issues were to the affect, as to:-
(i) Whether the suit land was mortgaged by Ali Khan, father of Muhammad Yaqub Khan and others, in the sum of Rs.106 in favour of opposite party; and
(ii) Whether defendants (Muhammad Yaqub Khan and others) were entitled to seek redemption of mortgage etc. ' The avidence of the parties on additional issues was concluded when on 26th August, 1984, Muhammad Yaqub Khan and others moved an application, to seek an amendment in their plaint to the effect that the suit land was mortgaged by them in the sum of Rs.106 in favour of Akbar Khan and other. An issue was also framed to that effect on account of pleadings in the counter-suit. As the said averment escaped its mention inadvertently in their plaint, introduction of the amendment in para. 3 and relief column of the plaint, was expedient. It was also disclosed that the petitioners did not want to lead evidence in support of the proposed amendment. The application was opposed by the opposite party on the ground of delay, change in the complexion of suit and introduction of new cause of action. The objection of the opposite party prevailed as the prayer for amendment was refused.
3. Rule 17, Order VI, C.P.C. postulates that 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. It further made imperative that all amendments, necessary for the purpose of determination of the real questions in controversy between the parties, shall be allowed. The requisite condition for amendment in the pleadings was that the proposed amendment 'dust be just and that it shall be necessary for the purpose of settlement of the real question in contro A versy. In the instant case, it is noticed from the pleadings in the cross suit that the petitioners in their plaint claimed their title in the suit land and averred that possession of the land was given to the opposite party in near past and on demand of the possession, the opposite party refused to acknowledge the title of the plaintiffs. In written statement furnished in the counter-suit filed by the opposite party, it was expressly averred that the suit land was mortgaged with the opposite party in the sum of Rs.106 and the mortgage was subject to redemption on payment of mortgage money. In this view of the matter when the controversy received the attention of the District Judge, the finding of the trial Court was reversed and on framing additional issue on the pleadings of mortgage and right to seek its redemption, the suits were restored on the file of the trial Court. It is, therefore, clear that though the plaintiffs omitted to take specific defence of mortgage and their entitlement to seek redemption of such mortgage of the suit property, in their plaint, yet on institution of the counter- suit, on the basis of adverse possession, at the earliest stage, they pleaded the defence of mortgage and right to seek redemption of mortgage in respect of the suit land. Thus, the objection that the proposed amendment was belated, as such male fide, is not sustainable.
4. It is already noticed that the conditions contemplated by the provisions of rule 17, Order VI, C.P.C., for amendment of the pleadings, are that the proposed amendment should be just and that it must be necessary for determining the real questions in controversy. In the present case, it is undenied that the proposed amendment was already raised in controversy between the parties, in the counter-suit. It is also admitted that an issue was framed to that effect and evidence of the parties on the question of mortgage and right to its redemption was already concluded. Moreover, the petitioners desired to produce on further evidence on permission to introduce the amendment.
The permission to amend the pleadings is, therefore, not deemed unjust so as to take the opposite party by surprise or to injure the legal right already accrued to it.
5. As the subject of dispute in the cross suit and parties are common, introduction of amendment of a new ground in support of the claim, already raised in defence to the counter-suit, is just formal amendment, neither changing the complexion of the suit nor raising a C new cause of action.
Particularly in presence of issue already settled and evidence concluded, the proposed amendment is just a formal intro duction of the plea in the pleadings of plaintiffs. Such an amendment cannot be termed as mala fide and unjust.
6. As a rule, permission to amend the pleadings is granted to enable the party to raise real questions in controversy provided the amendment occasioned no injury or injustice to a legal right, already accrued to opposits party. In absence of an injury to legal right of the opposite party, Courts are liberal in allowing amendment to introduce the allied questions in issues, to avoid multiplicity of suits. In the instant case, the learned counsel for the opposite party was unable tc show as to how the proposed amendment changed the complexion of the suit or raised a new cause of action or in any manner defeated a lega right already accrued to the respondents. An unreported case, titled Afsar Khan v. Akbar Shah; decided by the learned Acting Chief Justice, Supreme Court of Azad Jammu and Kashmir, was referred in opposition to the objection. This case, unfortunately, has no application to the proposition in hand, as in that case, leave to appeal was declined to examine the finding of the High Court whereby the learned Judge in the High Court dismissed the suit for daclaration as, in opinion of the learned Judge, the suit land was found mortgaged with the appellant in that case and unless mortgage was redeemed, the defendant- appellant could not be dispossessed. In absence of prayer for redemption of mortgage, it was not found expedient to allow decree for possession. In Muhammad Munsif v. Jan Muhammad 1984 CLC 726, plaintiffs failed to prefer his superior right of purchase against second vendee. On lapse of statutory period, an application for amendment to prefer superior right against the second vendee, was moved by pre-emptor. The proposed amendment was disallowed on account of limitation, as at the relevant time, the limitation for exercising prior right of purchase had already expired. Thus, the dictum of that case has no application to the present case. In the instant case, the opposite party pleaded adverse possession but there is no replication to the written statement containing repudiation to the claim of the redemption of mortgage. Be as it may, issue of limitation having been already raised in the pleadings and evidence lad by the parties, the introduction of the ground already raised in the counter-suit, by no stretch of imagination, can be deemed to defeat the right of the opposite party. In Muhammad Boota v. Mst. Jewani PLD 1981 Azad J & K 110, plaintiff out of possession, brought a suit for declaration and failed to seek consequential relief for possession as provided in the proviso to section 42 of the Specific Relief Act. On the conclusion of evidence of the parties, an application for permission for amendment to seek consequential relief, was preferred. The application was opposed on identical grounds. The objection raised by the opposite party was overruled and permission to introduce the paryer for consequential relief in the relief column was allowed as in view of the pleadings of the parties, the proposed amendnent neither changed the complexion of the suit nor raised a new cause of action. The proposed amendment in the present case, is not considered contrary to rules of justice and law. The trial Judge failed to appreciate the aforesaid position of the case and declined his permission in consideration of delay. In well considered view of this Court, the said delay is not material so as to decline the requisite permission. The statutory provisions contemplate that amendment in the pleadings can be made at any stage. As the restrictions enforceable against the amendment are not found attracted in the case in hand, consideration of mere delay contains no importance.
7. The petition is, therefore, allowed. The petitioners are authorized to introduce the proposed amendment in their pleadings. Parties are directed to appear before the subordinate Court on 26th December, 1984. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.