This civil revision application is directed against the appellate judgment and decree passed by the learned District Judge, Dera Ismail Khan, on 28-9-1986, whereby he maintained the judgment and decree passed by Civil Judge First Class, D.I.Khan on 23-2-1986.
2. The brief facts forming the background of the dispute are that the plaintiffs-petitioners instituted a suit against the respondents for a declaration of their title to and confirmation of their possession over land measuring 1608 kanals and 4 marlas as described in the heading of the plaint and situate in the revenue estate of village Miani in Tehsil and District D.I. Khan. Additionally, a decree for perpetual injunction so as to restrain the defendants-respondents from interfering with the plaintiffs-petitioners' title to and possession of the suit land was claimed coupled with a mandatory injunction directing the defendants --respondents to get the mutation of sale entered and attested in favour of the petitioners. It was averred in the plaint that Mst. Jano, the predecessor-in-interest of the defendants, on receipt of entire sale consideration of Rs.1,60,820 sold the. Disputed land to the plaintiffs on the foot of a sale agreement dated 8-8-1975 and in pursuance thereof delivered the possession as well. It is further argued that before the vendor could get the mutation of sale entered and attested she. Died. The defendants, successors-in- interest of Mst. Jano, who were legally bound to honour the commitment of Mst. Jano not only started interfering with the possession of the plaintiffs over the disputed land but also refused to get the sale mutation attested in their favour. Mst. Shahzad Bibi defendant No.l confessed judgment while Mst. Mato Bibi defendant No.2 contested the suit by filing a written statement wherein she pleaded, inter alia, that the suit in declaratory form was not maintainable. The learned Civil Judge, however, dismissed the claim of the plaintiffs against defendant No.2 mainly on his findings on issue No.7 which is to the following effect:- "Whether the plaintiffs are owners in possession of the suit land and the defendants have got no concern whatsoever?"
3. The learned trial Judge seems to have doubted the veracity of the agreement to sell copy Exh.PW.2/1 and held that due to non-registration this deed was of no avail to the plaintiffs and thus held "that they had failed to prove that they were owners-in-possession of the' suit land" It may be pointed out that this issue could have been appropriately disposed of in conjunction with issue No.8 which reads as under:- "Whether the alleged sale-deed is fictitious, wrong, collusive and against law, hence ineffective upon the rights of the defendants?'
4. In any case the criticism which is contained in para. 2 of the judgment against the sale agreement copy Exh.PW.2/1 should have been made under issue No.8 reproduced above. The learned trial Judge has, however, queerly enough, held that the defendants have failed to prove this issue but in the same breath it has been observed that "as the document has been declared as ineffective, while discussing issue No.7, this issue, therefore, needs no independent discussion and the same is disposed of accordingly". On crucial issue No.2, reproduced above; to my, astonishment, the finding is that "this is neither proved nor pressed at bar, hence decided in negative". This finding of the learned trial Judge runs counter to his finding on issue No.7 wherein he has observed that document in question is unregistered and is agreement to sell. The plaintiffs were thus granted "decree against defendant No.l upto the extent of her share, while the suit was dismissed against defendant_No.2".
5. The plaintiffs filed appeal to the learned District Judge but without any success. Hence this petition in revision.
6. On 3-5-1988, the learned counsel for the petitioners filed an application under Order VI, rule 17, of the C.P.C. For amendment of plaint "so as to file the suit in proper form for specific performance of the agreement to sell with consequential relief of possession and injunction and in the alternative, for the return (refund) of the amount paid being a charge on the property because at the time of Agreement, the land in suit was under Project Area and permission of Commissioner was condition precedent to validate an alienation:" This application has been strenuously resisted by Mst. Mato Bibi respondent No.l.
7. The learned counsel for the petitioners contended that the amendment which has been sought would not alter the nature of the suit and that it was only the form of suit that would be changed in that the relief claimed would be for specific performance of the sale or in the alternative for refund of sale consideration instead of declaration and perpetual injunction. It was next contended that amendments of pleadings has even been allowed by the august Supreme Court. In this regard he relied on Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345 and Sardar Begum v. Khalid Mahmood 1986 CLC 2342.
8. As against this, the learned counsel for the respondent argued that notwithstanding a preliminary objection in the written statement, the petitioners had ignored to seek amendment. It was further contended that the application for amendment having been made at the very belated stage should be disallowed. Reliance was placed on Barkat Ali v. Fazal Ahmad Karim Fazli 1987 SCLC 804.
9. In Ghulam Bibi's case, a suit was filed by one Muhammad Aslam, seeking a declaration that he was owner-in-possession of land described therein and for injunction to restrain the respondents from interfering with his possession. The respondent therein, inter alia pleaded that such a suit for declaration and injunction was not maintainable in its present form which plea was reflected in the issue as to "whether the suit was not maintainable in its present form". The trial Court decided the issue against the respondents and decreed the suit. The respondents went in appeal and succeeded in the appellate Court which held that the appellant should have filed a suit for specific performance of the agreement and not a declaratory suit and thus reversed the findings of the trial Judge on the issue reproduced above and held the suit not to be maintainable in the form in which it had been filed. In second appeal an application was filed to amend the plaint, but it was rejected by the High Court on the ground that it was a belated request and if allowed it would cause injustice and injury to the opposite party particularly in the context that an objection was taken in the written statement but no step was taken to rectify it. Their Lordships of the Supreme Court were pleased to accept the appeal and in consequence while setting aside the judgment of the High Court allowed the application for amendment of the plaint subject to payment of costs.
10. The facts of the case in hand as is evident from the above narration, are identical with the case of Mst. Ghulam Bibi. The two objections raised in that case too that the suit was not maintainable in the present form and the application for amendment had been moved at a belated stage were repelled by the august Supreme Court. Respectfully following the principles enunciated in the case of Mst. Ghulam Bibi by the Supreme Court, I hold that once the Court --decides that the amendment is necessary for the purpose of determining then real question as required under Order VI, rule 17, C.P.C., the Court is required by law not only to allow an application for amendment made by a party in that behalf but is also bound to direct the amendment for the said purpose.
This proposition is, however, subject to the conditions that the cause of action does not change the main substance and nature of the suit and that it does not change the question of limitation.
11. In the present case as stated in the application for amendment, the facts on which the plaintiffs- petitioners relied when filing the plaint would not undergo any substantial change except for technical variations and changes. The objections particularly to original agreement to sell relied upon by the plaintiffs and denied by the defendants and the averments in the pleadings regarding possession etc. Would remain the same.
12. In the light of the above discussion this petition in revision is allowed and the impugned judgment is set aside. The application made by the petitioners for amendment of their plaint on 16- 4-1988 is allowed subject to payment of Rs.2000 as costs of amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendant No.2 shall also, if she so requests, be allowed a proper opportunity to amend her written statement. There shall, however, be no order as to costs.