2s The case of the petitioner was that there was an agreement between the parties according to which the respondent was to supply chilling units to the petitioner at the contracted price.
According to the petitioner the respondents furnished security for due performance of this agreement undertaking that five Chilling units with necessary accessories in the Milk Fountain shops may be followed by the petitioner in case the performance of the contract was refused. The petitioner sought a declaratory decree that since the agreement was not Performed by the respondents, therefore, the petitioner was entitled to forfeit and dispose of five chilling plants which were subject-matter of the security. The suit was contested. The respondent raised an objection that the suit was barred under Section 42 of the Specific Relief Act and the same was not maintainable in the present form. On the pleadings of the parties various issues were framed by the learned trial Court, out of which issue No.1 is relevant, which are as under:- (1)Whether the suit is barred under section 42 of the Specific Relief Act? OPD
(2) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction ? OPD (3)Whether the impugned undertaking is compulsorily registerable? OPD (4)Whether the undertaking in question is void, and without consideration ?
OPD (5)Whether the suit is mala fide ? OPD (6)What were the terms of the agreement between the parties ? OP Parties.
(7)Whether the defendants received Rs. 2,62,500 as alleged in the plaint ? OPP (8)Whether the defendants have failed to comply with the undertaking given, by them ? OPP (9)Relief.
3. The learned trial Court held that the remedy of the petitioner was either to seek rescission of agreement or for recovery of damages on account of breach of the same and could not seek mere declaration. The suit was, therefore, dismissed as it was found not to be maintainable. Feeling aggrieved the petitioner filed appeal which has also been dismissed by the learned lower appellate Court, through impugned judgment and decree dated 18-2-1988.
4. The petitioner during the pendency of this revision petition filed an application bearing C.M.No. 2262/C of 1988 praying for permission to amend the plaint. The proposed amendments are as under:- (1)In clause title, plaintiff be substituted thus:- "Administrator, Punjab Livestock Dairy & Poultry Development Board, Lahore Milk Plant Premises, Kot Lakhpat, Lahore-40."
(2)Title of suit to be "Suit for grant of damages" instead of Suit for grant of declaration.
(3)Para 1 of plaint be allowed to be substituted thus:- "1. The plaintiff Board was a statutory body and after its dissolution, the Administrator is notified officer under S.22 of Punjab Act III of 1974 competent to sue. The defendant No. 1 is a private limited company. Mian Muhammad A.I is its Managing Director."
(4) In para 2 in first line between word "place" and "between" following line be inserted: "(before dissolution of Punjab Livestock DPD Board, hereafter called Board)."
(5) In para 2 word plaintiff be allowed to be substituted by "erstwhile Board".
(6) Para 5 of plaint be allowed to be substituted by this para:- "5. Plaintiff purchaser demanded delivery but defendants committed breach of contract before property in goods passed to purchaser. Thereby latter suffered following damages: Advance money paid:Rs.2,62,500 General damages: Rs.2.38.000 "Defendants have denied the claim of Plaintiff/purchaser. Hence this suit has become necessary."
(8) Para 9 will be substituted by this para: "9. Suit valuation for court-fee and jurisdiction is Rs. Five lac being the pre-estimated amount of liquidated damages."
(9) Prayer part be allowed to be substituted thus: "Plaintiff respectfully claims a decree against the defendants jointly AND/OR severally for Rs. 5 lac by way of damages with costs."
(10) Verification will be amended accordingly."
This application has been contested by the respondents.
5. Learned counsel for the petitioner argued that since it has been held that the suit of the petitioner was not maintainable in the present form, therefore, he may be allowed to amend the plaint. According to the learned counsel the proposed amendments are such which would not substitute a new cause of action for the one on the basis of which the suit has been filed i.e. Breach of agreement dated 13-3-1980. He argued that according to the view expressed by the superior courts if the suit is not maintainable in the form in which it has been filed, the plaintiff can be allowed to amend the plaint at any stage of the suit. He relied upon judgments reported as Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCM R 824), Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Secretary to Government (West Pakistan) now N.-W.F.P. Department of Agriculture and Forests, Peshawar and others v. Kazi Abdul Karl (PLD 1978 SC 264), Dr. Syed A.I Sajjad Bukhari (Through L.Rs) v. Sabir A.I Shah etc (1987 CLC 229), Muhammad Anwar Tipu v.
Pakistan Railways (1987 CLC 2103), and Muhammad Gohar etc. v. Pakistan etc. (1982 CLC 1523).
6. Learned counsel for the respondents submitted that an objection was taken to the maintainability of the suit in the Written statement and the petitioner has been negligent in not seeking permission to amend the plaint and waited for the final disposal of the suit and even in appeal the petitioner maintained that the suit was maintainable and did not seek permission to amend the plaint, as such, the petitioner is not entitled to any indulgence by this Court.
7. The view has consistently been taken by the superior Courts reflected in the reported judgments relied upon by the learned counsel for the petitioner that in a case where suit for declaration simpliciter has been filed, the plaintiff may be allowed to amend the suit so as to make proper prayer even at the stage of the Supreme Court. Law favours adjudication of the cases on merits. In Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) the dismissal of suit merely because it was not in proper form has not been approved. In my view the Court should have called upon the plaintiff to amend the suit to make it in proper form. In some of the above reported judgments the amendment of the plaint has been allowed even at the revisional stage. The proposed amendments do not constitute substitution of a new cause of action for the one on the basis of which the suit has been riled. C.M. No.2262/C-88 is hereby allowed. The petitioner is permitted to amend his plaint and incorporate therein the proposed amendments subject to payment of Rs.3,000 as costs.
8. This revision petition is accepted, the impugned judgments and decrees are set aside and the case is remanded to the learned trial Court, where the petitioner shall file the amended plaint within one month from the date of appearance of parties before the learned trial Court or within the extended time, if the same is allowed by the trial Court in its discretion. If the amended plaint is not filed and the cost is not paid the suit shall be dismissed: The parties are, however, left to bear their own costs.
M.Y.H./A-557/1,