1. ' This is an application under Order VI, rule 17, C.P.C., for amendment of the plaint. Briefly the facts are that Eastern Federal Insurance Co. Ltd. alongwith two other companies had entered into an under writing agreement dated 30-5-1970 with Bahawalpur Textile Mills Ltd. hereinafter called the company. The defendants are partners of Messrs Fateh Muhammad Akbar who were the managing agents of the company and were its major share holders. Under the underwriting agreement Eastern Federal Insurance Co. Ltd. acquired shares of the company and entered into a buy back agreement dated 24-6-1970 with the defendants known as 'Guarantors'. Clause 6 of the agreement provided as follows:- "That the Guarantors hereby jointly and severally agree to buy back at the end of five years from the date of the execution of this agreement all or any portion of the said shares of Bahawalpur Textile Mills Ltd. including any bonus and/or right taken up by Eastern Federal in respect of the said shares, that are offered by Eastern Federal at its sole option to Guarantors for purchase. Any such shares offered by Eastern Federal shall be purchased within 15 days of the receipt of such offer by the Guarantors who shall be jointly and severally responsible to do so, at the market price, face value or book value whichever is the highest on the date of the exercise of the option, which option must be exercised by Eastern Federal within two months of the expiry of the said five years period.
2. Provided, however, that Eastern Federal shall be entitled to retain all or any portion of the said shares in which case the Guarantors shall be released of their obligation to purchase back and their obligation in respect of the guaranteed return on the said shares or that portion only of the said shares which were retained 1,y Eastern Federal as the case may be; provided further and it is hereby agreed that Eastern Federal shall always have the right during the said period of five years to sell all the said shares of Bahawalpur Textile Mills Limited; including bonus and right shares or any portion or portions thereof at the then prevailing market price but before selling the said shares or any part or portions thereof, as the case may be, Eastern Federal shall give notice in writing to the Guarantors of its intention to sell the said shares, and in such an event the Guarantors shall have the first option to purchase such shares within one week of the receipt of such notice from Eastern Federal. If, however, the Guarantors do not exercise their right to purchase such share within the prescribed period, Eastern Federal shall be free to sell such shares after the expiry of the prescribed period of one week."
3. ' On the promulgation of President's Order X of 1972 all the assets, rights and liabilities of the Life Insurance business of the Eastern Federal Insurance Co. Ltd. vested in the plaintiff. Thereafter all the rights and liabilities under the aforestated contracts were acquired by the plaintiff. In terms of the buy-back agreement the plaintiff by its letter dated 7-6-1975 sold all its share holding i.e. 30,970 shares to the defendant and called upon the defendants to pay within 15 days Rs.4,46,131.98 made up as follows:- 'A. Re-purchase price of 30970 shares. Rs.3,09,700.00 B. Guaranteed return 3 years and 256 days. Rs.1,14,933.11 C. Penal interest up to 21-9-1975. Rs. 21,498.87 Total Rs.4,46,131.98 In spite of several reminders the defendants did not pay and ultimately the plaintiff served a legal notice dated 29-11-1977 claiming Rs.559,844.17 as follows:-
(i) Sale price of 30,970 shares at Rs.10 each. Rs. 3,09,700.00
(ii) Balance guaranteed Dividend. Rs. 83,963.11
(iii) Interest on amount due upto 15-1-1977 Rs. 1,59,181.06 Rs. 5,52,844.17 ' From the pleading and copies of the letters produced by the plaintiff it is clear that under clause 6 of the agreement the plaintiff exercised its option to sell the shares to the defendants as its face value viz. Rs.10 each share. As the defendants did not pay the amount claimed by the plaintiff it filed the present suit on 26-3-1978 for recovery of Rs.5,61,078.08.
4. ' On 21-2-1982 the plaintiff filed application under Order VI, rule 17, C.P.C., to amend the amount of claim as Rs. 6,56,982.66 instead of Rs.5,61,078.08. The application did not mention the specific amendments sought to be made in the plaint but filed an amended plaint containing amendments. This practice of seeking amendment in the pleading is not proper as unless the entire amended plaint is scrutinised by comparing with the original plaint it is not possible to find what amendments the plaintiff is seeking. Such practice is bound to create confusion and complication and should be avoided. The proper course is to specify the actual amendments in the application with A reference to the paragraphs of the plaint. However, it seems that the plaintiff has only amended the figures of claim at Rs.6,56,982.66 and added paragraphs 18-A and 19(ix).
5. ' The main ground for seeking amendment is that under the agreement the plaintiff was entitled to charge the price of the shares at the market price, face value or book value whichever was the highest on the date of exercise of option. According to the plaintiff on 24-6-1975 the book value of the share was Rs.11.84 but the claim was made at Rs.10 due to bona fide and "inadvertent omission mistake or slip". And further that the amendment is necessary for determining the controversy between the parties.
6. ' The plaintiff has nowhere stated that when it came to know about the alleged mistake in calculating the amount. Before filing the suit it had addressed several letters but this fact has not been mentioned. The plaintiff has filed copies of two letters of the defendants dated 18-3-1981 Annexures AA/2 and AA/3 from which it is clear that they had agreed to repurchase the shares in terms of agreement. It seems that the parties had discussed the matter and the plaintiff had agreed to withdraw the suit. By another letter of the same date the defendants enclosed a bank draft for Rs.6,82,286.61 dated 18-3-1981 towards buy back cost of 30,970 shares and interest accrued thereon. Mr. K.A. Wahab has invited my attention to the plaintiffs, reply dated 21-3-1981 which the defendants have filed with their application under Order XII, rule 6, C.P.C. This letter has not been denied by the plaintiff and reads as follows:- "This has reference to letter No.FMA/831/81, dated 18-3-1981 of Messrs Fateh Muhammad Akbar, Market Road, Hyderabad, wherein:
(i) The intention to exercise your option to buy back these shares duly stipulated in the said agreement is expressed.
(ii) It has also been indicated in the letter under reference that the guarantors have nominated Messrs Hidayatullah Muhammad Fareed & Co. Hyderabad, through their partner, Mr. Hidayatullah or Mr. Muhammad Farooq or their representative, Mr. Maqbool Ahmad Siddiqui to receive from us the 30,970 shares of Bahawalpur Textile Mills against payment by them of the repurchase consideration including the principal amount, outstanding guaranteed dividend, interest accrued thereon and any dues that may be outstanding upto the time of settlement of the liability under the aforesaid agreement.
7. ' Through their letter H.M.C/100/80, dated 18th March, 1981 Messrs Hidayatullah Muhammad Fareed & Co., Hyderabad, have sent us a Demand Draft No. XDDG 607596/145, dated 18th March, 1981 for Rs.6,82,286.91 and a Demand Draft No.XDDG 607595/144 dated 18th March, 1981 for Rs.20,613. It has been stated by them to be payment towards buy back consideration of 30,970 shares of Messrs Bahawalpur Textile Mills, guarantee divided and interest accrued thereon.
8. ' We have accepted the amounts and, therefore, absolve you of your full liability under the above- mentioned buy-back agreement and also undertake to withdraw legal suit pending in High Court of Sind at Karachi.
9. ' We shall be requiring a letter of indemnity duly signed by all the legal heirs of guarantor No. 1 Late Wall Muhammad Akbarji against any claim of any person till such time the heirship certificate or succession certificate is furnished to us. The shares will be delivered to Messrs Hidayatullah Muhammad Fareed & Co. on receipt of the said indemnity bond/heirship or succession certificate."
10. ' According to the defendants they complied with all the requirements and delivered the letter of indemnity succession certificate and also paid under protest Rs.20,613 towards the cost and expenses of the suit but the plaintiff failed to deliver the share certificates. The defendants addressed a letter dated 25-3-1981 copy of which has been filed by the defendants with their application under Order XII, rule 6, C.P.C. From these undisputed letters it is clear that after the suit was filed the plaintiff negotiated and settled the matter with the defendants and even received Rs.6,82,286.91 and cost of the suit. During this long period of about six years the plaintiff does not seem to have realised that it has committed any mistake in calculating the price of the share certificates. It, therefore, seems clear that the plaintiff thought of the alleged mistake after the settlement. As the plaintiff's statement regarding the date of knowledge of the alleged mistake is vague and lacks in material particular it can be presumed that it may have been realised just before filing the application under Order VI, rule 17 on 21-2-1982. However, in paragraph 18-A of the amended plaint it has been stated that 'a copy of the plaintiff's letter dated 9-7-1981 making rectified claim and demanding the deficient amount of Rs.1,63,015.05 as on 31-5-1981 is annexed and marked M, 'but the copy has not been filed. From this statement it can be gathered that demand was made on 9-7-1981 i.e. after the settlement. In spite of the fact that the alleged mistake was within the knowledge of the plaintiff in July 1981 the amendment application was not filed upto 26-2-1982. All these facts adversely reflect upon the conduct and bona fide of the plaintiff .
11. ' From these facts it is clear that the plea of alleged mistake is not at all tenable particularly so when it has not been explained how and in what circumstances the mistake has occurred and remained undetected for about five or six years. Even if it is accepted as a mistake it was due to the negligence of the plaintiff.
12. ' The facts, circumstances and the conduct of the plaintiff patently demonstrate lack of bona fides.
13. It seems that after settling the matter and accepting the amount claimed in the suit, the amendment is being sought to wriggle out of the settlement and to set it at naught. This conduct of the plaintiff is far from being honest and bona fide. The plaintiff filed the copies of letters of the defendants dated 18-3-1981 but conveniently concealed its reply dated 25-3-1981. This clearly reflects the dishonest, intention of the plaintiff. For the exercise of discretion by the Court granting amendment it is necessary that the applicant has acted in good faith. The plaintiff has sought amendment at a very late stage. In Mrs. Parbati L. Sitlani and others v. H. Husain and Co. and others PLD 1963 Kar. 397 the application for amendment was rejected as it was belated and amendment sought would have deleted the admission made by the applicant. In the present case the plaintiff has settled the matter and the application is also belated. In Sh.Alauddin's case PLD 1960 Lah. 446 Kaikaus, J. (as he then was) held that Court "should be lenient towards application of amendment of pleading. It does not even matter very much if the application has been put in after delay provided it is bona fide." Where applicant lacks bona fide, and there is delay, no leniency can be shown to him. The plaintiff's application suffers from both these defects.
14. ' The plaintiff filed this suit on 26-3-1978 in respect of cause of action which arose in April 1975. A fresh suit on the additional claim sought to be added by amendment would be barred by limitation on the date of application Le.26-2-1982. Considering the facts and circumstances of the case and the conduct of the plaintiff it will not be in the interest of justice to allow the amendment.
15. ' Mr. Tahir Hussain the learned counsel for the plaintiff contended that in their letters dated 18-3- 1981 the defendants have agreed to pay any other dues concerning these shares. The letters read as a whole do not permit the plaintiff to recover the additional claim particularly so when by its letter dated 25-3-1981 the plaintiff has settled the matter. In any event the plaintiff not seeking amendment on the basis of subsequent agreement between the parties whereby the defendants are alleged to have agreed to pay the additional amount. In the application no such plea has been raised, nor it has been incorporated in the amended plaint filed by the plaintiff in advance. This plea is, therefore, not tenable. The application is, therefore, dismissed with costs.
16. ' The defendants' application under Order XII, rule 6, C.P.C. was not fixed for hearing today but Mr. Tahir Hussain agreed that it may also be heard alongwith plaintiff's application under Order VI, rule
17. During the course of argument he requested for time to properly prepare application under Order XII, rule 6, C.P.C. The hearing of defendants application under Order XII, rule 6 is adjourned to 13-5-1984.
17. Amendment declined.