' This order will dispose of a Micellaneous Application filed by defendant No. 2 under Order VI, rule 17, C.P.C. praying for amendment of written statement filed by the defendant.
' Khan Bahadur Kavasjee Hormusjee Katrak, a philanthropist of Karachi donated a plot of land, with building thereon, measuring about 2,198 Sq. Yds. situated in Depot Line, Cantt. Area, Karachi to the St. John Ambulance Association, the plaintiff in this suit. This transfer was effected through a Deed of Gift executed by the Donor on 15th March, 1941 and duly registered on 24th April 1941 with the Sub-Registrar, Karachi. Clause 3 of this deed provided: "3. The Donees hereby covenant with the Donor that subject to the general control of the Donees over the grounds and buildings which are the subject-matter of these presents the said grounds and building shall also be made available for the use of the Sind Provincial Branch of the Indian Red Cross Society."
3. The plaintiff in this suit, on the basis of recitals in the Deed of Gift is claiming absolute and exclusive rights in the plot and have filed the suit praying for "ejectment of defendant No. 2 and all persons claiming through them from the premises in their occupation on the portion of Plot No. 96 Depot Lines within the Cantonment of the City of Karachi belonging to the plaintiffs".
4. The Pakistan Red Cross Society, the defendants herein are resisting the claim in suit and defendant No. 2 are seeking to interpret clause 3 of the Deed of Gift to their advantage and in their view they are entitled to remain on the portion in their occupation without challenge to their right and without interruption.
5. Para. 3 of the written statement filed by defendant No. 2 indicates their main defence and it runs as follows:-- "That in reply to para. No.3 it is submitted that the Donor has created rights for the defendant No.2 as well and the defendant No.2 is the co-beneficiary of the property as per declaration and Gift Deed."
6. On these pleadings, issues were framed, but the following two issues are germane to the main controversy:-- "Issue No.4.
' Is the defendant No.2 in permissive use of the premises in its occupation?
Issue No.6.
' Are the plaintiffs entitled to declaration, possession and compensation for the use and occupation, as claimed."
7. It may be noted here that the suit was filed on 18-8-1973, the written statement was filed on 20- 12-1973 and the issues were framed on 22-9-1975. Thus the suit became ripe for hearing but had to await its turn and finally was posted for recording of evidence on 21-1-1985. The case was adjourned for want of time and again fixed for 22-1-1985. Statement of Mr. Iqbal Ahmed Qureshi was recorded for plaintiff on this date and the plaintiff's side was closed. On 20-2-1985 evidence of P.W. Francis Lobo was recorded for defendant No.
2. On 7-3-1985 a statement was made on behalf of defendant No. 1 that they would lead no evidence and the case was adjourned to 7-3-1985 for arguments. It is at this advance stage that the present application for amendment of the written statement is filed by the defendant No. 2.
8. It was pointed out to the defendants' learned counsel that the application was liable to be dismissed on account of its vagueness and want of precision of the amendment prayed for. The exact para. which is desired to be added in the written statement has not been drafted. But if the application is dismissed on that account it would further delay the conclusion' of this very old suit.
The learned counsel, while conceding that "the application is not happily worded", tried to spell out from the application the following passage which he wants to be added to the written statement of defendant No.2:-- "The alternative plea is that the defendant has become entitled to the portion in possession adverse to the plaintiff and the suit for possession and mesne profits is not maintainable and barred by limitation and liable to be dismissed on this legal point."
9. Mr. lqbal Kazi learned counsel for the plaintiff has opposed this application. His opposition was based on the contention he has raised in para. 4 of his counter-affidavit, which is reproduced for ready reference:-- "4. That the plea taken in the application sets up an absolutely new case and is in contradiction of the written statement filed herein. It has been raised at a very late stage after the evidence of all parties had been closed and the counsel for defendant No. 1 himself had agreed that he will lead no evidence and argue the matter on behalf of defendant No.1. It suffers from inordinate delay and laches and in the circumstances of this case, I humbly say that the application of defendant No. 1 is liable to be dismissed."
10. Closely examined the objections raised to the grant of the applica tion are:--
(1) that the desired amendment seeks to set up a new case;
(2) that the proposed amendment "is in contradiction of the written statement filed herein."; and
(3) that "it has been raised at a very late stage after the evidence of all parties had been closed. It suffers from inordinate delay and laches".
' Now; objections Nos. 1 and 3 relate to the period of time and stage at which the prayer for amendment is brought up. A new case means something subsequent to the main event in point of time. If the request for setting up this new case is recent to the happening of the original event, it would still be new, and if this new or subsequent request is made after long interval, it would still be new but delayed. In the present case it must be conceded that the plea raised now is new and delayed. But this will now conclusively resolve the problem. The delay alone will not be enough to disentitle the applicant from making a prayer for adjudication of a real and substantial relief which, he could take at the initial stage but which he overlooked or failed to include in the pleadings at the proper time. The penalty for such a lapse should be costs and not shutting him from introducing the plea which is substantial and bona fide.
11. Now we have to see whether this new plea is complimentary or contradictory to the defence originally set up. If it is complimentary, there is no difficulty. Even if it is additional or what may be called an alternative plea still it would be permissible. But if it is contradictory to the original defence, then it cannot be permitted. In other words the two defences should not be mutually destructive. They must and ought to be harmonious. Mutually destructive pleas could not be permitted to stand side by side even if they were drafted in the original pleadings and should not be permitted to be incorporated at a subsequent stage as well.
12. In this view of the matter, the short question for determination is whether plea of being a "co- beneficiary of the property as per declaration and gift-deed" is destructive to the plea of adverse possession now sought to be raised through the proposed amendment. In my view the two pleas are merely the two sides of the same weapon of defence, the defendant wants to use to ward of the attack. He claims an independent right for himself as a co-beneficiary under the gift-deed. But now he says that if he does not succeed in establishing this right he would still protect his possession on the basis of occupancy for a period of over 12 years, when the right to eject him stands extinguished by lapse of time. This may be a totally bogus and misconceived plea and may collapse at once. But that is not the criterion to dispose of a prayer for raising this plea. We cannot scrutinise the application for amendment on the chances of success or failure of the plea raised, but have to see whether such a plea was or is available to the defendant at all.
13. The main consideration at this stage is whether the two pleas could be taken by the defendant when he filed the written-statement. Originally he set up a case that in his reading of the gift-deed he is a co-beneficiary. He is not abandoning this plea even now. What he is saying is that if he does not succeed in establishing a right in the land, he still can protect his possession by a comparatively weaker right i.e. right over the land. In the alternative or may I say in this additional plea, he says that he can still resist an attack to throw him out by pleading adverse possession. The former is an inherent right and the latter is a right created by statute. Strictly speaking he is not adding any new fact which could be called inconsistent to the theory of gift already pleaded. He is simply highlighting the legal effect of his being in possession by virtue of the gift-deed and says that this right has further been reinforced by his possession for a period over 12 years.
14. That alternative plea can be raised is a well-established proposition of law. Reference may be made to a well-known judgment of Kaikous, J. reported in Ala-ud-Din v. Mst. Farkhanda Akhtar PLD 1953 Lah.
131. At page 135 of the report the learned Judge analysed the provision of Order VI, rule 7 of the C.P.C. as follows:-- "There are as already stated a large number of cases laying down that alternative and inconsistent pleas are not barred. On a close examination of most of those cases it will be found that although the legal pleas were mutually exclusive, there were no contradictory allegations of fact. Take for instance a case where a party relies upon title by transfer from the owner and pleads in the alternative that even if the owner was minor at the time of transfer he has acquired a title by adverse possession. The allegations of fact are only the following:--
(1) 'A' was the owner of the property in dispute.
(2) 'A' executed a sale-deed in my favour in 1930.
(3) 'A' was a major in 1930.
(4) I have been in possession of the property in dispute from 1930 to 1952.
(5) Throughout the time I was in possession and considered myself the owner.
' These are all the allegations of fact which the plaintiff need make for pleading title and adverse possession. The rest of the statements which he will make in the plaint will only be legal effects of the facts alleged and according to the strict rules of pleading as provided in Order VI, rule 1, C.P.C. those legal effects should not be stated in the pleading. Party is to state only the facts and it is for the Court to apply the law and work out the results, though as a matter of convenience and on account of lack of regard for rules of pleading, such legal effects are generally made parts of pleadings. It will be observed that the facts detailed above which the plaintiff has to allege for a suit based on the alternative titles of transfer and adverse possession do not include any contradictory or mutually destructive allegations. Anybody can verify these facts with the strictest regard for truth. Many other cases of apparently inconsistent pleas will when analysed yield similar results. The inconsistency is only in the legal conceptions, not in the facts stated."
15. In this connection reference may be made to another recent judgment by a Division Bench of this Court reported in Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC
132. Some discussion from this judgment may be helpful to appreciate how a prayer for amendment is to be examined. At page 135 following observations were made:-- "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."
16. After reviewing a large number of case, the concluding para. of the judgment runs as under:-- "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 defendants cannot be denied to use weapons of his own choice in defending himself."
17. In another case reported in PLD 1958 Lah. 614, the provision of Order VI, rule 17 again fell for interpretation before Kaikous, J. and he disposed them of in the following manner:-- "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 circumstances it may not be proper to deprive him of. What better case could there be for an amendment than that the facts on which the plea is based have been duly mentioned in the plaint, that an issue on the point in dispute has been framed and evidence has been led, and the point on which the amendment is asked for is the real point of controversy between the parties. The learned District Judge has refused the amendment on the ground that 'it seeks to introduce a totally different, new and inconsistent case'. It is not possible for me to appreciate this observation. The plea which was being introduced by the amendment is founded on an agreement which is already on the record and the contents of which have been reproduced in the plaint and the plea is apparent on reading that document. The plea itself embodies the substance of what is the claim of the party as contained in the plaint. This is certainly not introducing a new and inconsistent case.
The learned District Judge seems to have regarded the new plea as inconsistent because the case as laid in the plaint was that the agreement was invalid whereas this plea assumed its validity. But there is no inconsistency at all in saying that the agreement is invalid because of undue influence or because of section 23 of the Electricity Act but that even if neither of the grounds of invalidity be correct and the agreement be valid, the plaintiff is not bound, in accordance with the agreement itself, to pay more than three pice per unit. I have already explained in Ala-ud-Din v. Farkhanda Akhtar PLD 1953 Lah. 131 what is an inconsistent case, a matter with regard to which there prevails what I believe is a misapprehension. For instance, adverse possession and ownership are regarded as inconsistent pleas. I have fully explained in that judgment that there is no inconsistency between these pleas. Alternative grounds of title do not constitute inconsistent pleas. It is only where a person has to. make two contradictory allegations of fact to support two pleas that the pleas are inconsistent. If two pleas can be put in the same plaint and that plaint can be verified by a person without contradicting himself, there is no inconsistency in the pleas. That is the simple criterion. There would be inconsistent pleas if a person were to say a document was a forgery and were to aver in the same plaint that he executed it because he was threatened with injury. These pleas cannot in fact be put in a plaint at all for the plaint has to be verified as correct and both the pleas cannot be correct."
18. In all fairness to the learned counsel for the plaintiff reference must be made to a case Gulab v.
S. Fazal Ilahi PLD 1955 Lah. 27 decided by S.A. Rahman, J., in revisional jurisdiction sitting as a Single Judge. In this case a dispute arose between two sets of heirs of one Ilahia who died leaving agricultural lands and was succeeded by Mst. Jawahari, widow of his pre-deceased son, Sahib Din.
This lady also died and the property to the extent of her share was mutated in the name of her brother Fazal Ilahi. Suit was filed against Fazal Ilahi, challenging any transferable right in Jawahari and on the allegation that she was entitled to maintenance being the widow of pre-deceased son.
The suit was contested by Fazal Ilahi and in the written statement filed by him it was pleaded that Mst. Jawahari had inherited the property as heir of Sahib Din and not merely in lieu of her right of maintenance. Subsequently an application for amendment of the written-statement was moved by Fazal Ilahi and it was pleaded that Mst. Jawahari succeeded to the property as the mother of her children Sardara and Mardan. An alternative plea was also raised and it was urged that as Mst.
Jawahari had remained in possession since the death of Ilahi, she had acquired a title by prescription over it. This alternative plea was allowed to be incorporated in the written-statement by the trial Court. In revision S.A. Rahman, J. disallowed this plea and expressed himself as under:-- "It has been conceded even by Mr. Siraj-ud-Din Ahmad, that the plea allowed to be raised in the amended written statement to the effect that Mst. Jawahari had entered into possession of the land in question without any semblance of right and had acquired an adverse title by prescription over it, was completely inconsistent with the position adopted by the defendant in the first instance and would indeed displace the whole case for the plaintiffs to their prejudice. Mr. Sirajuddin Ahmad was fair enough to admit that this part of the amendment could not have been allowed. In my opinion, the learned Civil Judge acted with material irregularity in allowing this part of the amendment. There is authority in support of this view. Reference in this connection may be made to Ibrahim Rowther v. Muhammad Esuf Rowther AIR 1930 Mad. 322, Inaganti Venkatrama Rao v.
Venkatalingama Nayanin Bahadur Varu AIR 1922 Mad. 49 and Shri Narain v. Kishan Lal AIR 1952 Rajasthan 15. I consider, therefore, that the revision petition is competent.
' As for the propriety or otherwise of the amendment in respect of the plea of adverse possession by Mst. Jawahri, there can be no two opinions. 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. This proposition was affirmed in two Division Bench judgments of this Court in Fazal Noor v. Bibi Rani AIR 1930 Lah.
278 and Ghulam Muhammad v. Mehta Chandras AIR 1927 Lah.
771. These 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 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. Their Lordships of the Privy Council in Ma Shwe Mya v. Maung Mo Bhaung AIR 1922 P C 249 expressed themselves as follows:- 'All rules of Courts 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.'
' The learned Civil Judge, therefore, clearly misdirected himself in allowing Fazal Ilahi to raise the plea of adverse possession by Mst. Jawahri."
19. The facts of that case were quite involved and view taken by the learned Judge was taken under the impact of concession made by the learned counsel. With due respect to the learned Judge and fully conscious of the weight of authority that this judgment carries with it, it is difficult to adopt it as a fully established proposition of law that when a litigant pleads a title in the property and also raises the plea of adverse possession, either originally or by way of amendment, it should be disallowed as an inconsistent plea. Inconsistency must be found in statement of pure facts. If one set of facts is pleaded in juxtaposition to another set of facts surely the pleas must be held to be inconsistent.
20. But as stated earlier in this judgment, the plea of adverse possession is not a plea of fact. It is a legal effect of possession which if authorised might be basis for a legal title, if unauthorized may qualify to be protected as a consequence of its long duration for a period of over 12 years. But factum of possession is the common feature in both the situations. There can be no clash or inconsistency with a state of fact and one or more legal inference to be derived from that factual phenomenon.
21. I cannot do better than to quote the opinion of Kaikaus, J. once again. At page 627 of PLD 1958 Lah. 614 the following few lines are instructive:-- "I have already explained in Ala-ud-Din v. Farkhanda Akhtar what is an inconsistent case, a matter with regard to which there prevails what I believe is a misapprehension. For instance, adverse possession and ownership are regarded as inconsistent pleas. I have fully explained in that judgment that there is no inconsistency between these pleas. Alternative grounds of title do not constitute inconsistent pleas. It is only where a person has to make two contradictory allegations of fact to suport two pleas that the pleas are inconsistent."
22. I would respectfully follow this view and hold that in the present case there is no inconsistency and the plea of adverse possession can be raised by the defendant.
23. The last point is delay in seeking the amendment. It may be stated that delay as such is not an absolute bar. In the case reported in PLD 1963 SC 191, amendment' was allowed by the Supreme Court at the stage of appeal. In the present case no new facts are pleaded. It is only legal effect of continuous possession which will be highlighted if the amendment is allowed. Perhaps no fresh evidence may be needed. It is admitted position in the case that defendants are in possession since the time the gift-deed was executed or thereabout. Still, I am inclined to allow the amendment on the defendants paying Rs.1,000 as costs for making the application for amendment after inordinate delay.
' The application is allowed. Defendants to pay Rs.1,000 to the plaintiff before amending the written statement which must be done within ten (10) days to avoid further delay in disposal of this old suit.