In brief the facts of this case are that on 18-8-1968 Dr. Imdad Ali petitioner filed a suit in the Court of Senior Civil Judge, Islamabad, seeking declaration against his wife Mst. Nawab Jahan Begum (respondent No.l) that he was owner in possession of house No. F-6i2 Islamabad. Mst. Nawab Jahan Begum put in appearance and filed written statement on 12-3-1985 controverting the averments in the plaint. The learned trial Judge framed issues, recorded evidence of the parties and partly heard arguments on merits. Dr. Imdad Ali plaintiff-petitioner on 8-10-1987 filed an application under Order V1. Rule 17 read with section 151, C.P.C. Praying that he be permitted to add relief of possession by amendment of the plaint. This petition was dismissed by learned trial Judge vide order dated 10-10-1987. Dr. Imdad Ali challenged dismissal of his application for amendment through a revision before learned Additional District Judge, Islamabad :vho dismissed the: same vide the impugned order dated 17-12-1987.
2. 1 have heard the learned counsel appearing on behalf of the ;parties and have perused ail the documents which form part of this petition. Learned counsel for Dr. Lmdad Ali plaintiff-petitioner contended that mere delay in filing of the application for amendment of the plaint was no ground to refuse the prayer. He, therefore, urged that the impugned orders were passed by learned Senior Civil Judge and learned Additional District Judge Islamabad without lawful authority and against the principles laid down by superior Courts. In support of his contention he placed reliance on Karamat Ali v. Muhammad Younas Haji (r L D 1963 SC 191). Ahmad Din v. Muhmmmad Shafi (PLD 1971 SC 762); National Shipping Corporation v. A.R. Mahmood Siddik (1974 SCMR 131); Mst. Gh-alam Bibi v. Sarsa Khan (PLD 1985 S.C. 345); Ahsan Kausar v. Zaman Khan (1986 SCMR 1799) and Abdul Karim v. Muhammad Ismail (PLD 1987 Lah. 298). The learned counsel for respondent No.l submitted that an objection was taken in the written statement that the suit. Was not maintainable in the present form because the plaintiff was not in possession of the disputed property. Secondly, that the application for temporary injunction. Filed along with the suit was dismissed by the learned trial Judge. An appeal against the said order was dismissed by the learned District Judge, Rawalpindi. Civil Revision No-701 of 1969 was dismissed by the High Court on 10-7-1974 which means that the plaintiff had notice as far back as the year 1974 that the suit was not maintainable in the present form, that the application for amendment should have beer, filed at that very stage of the suit, and finally that the present application has been filed after 20 years of the institution of the suit. He, therefore relying or Hump Enterprises v. Syed Pir Ali Shah (1985 CLC 1522) argued that the present petition be dismissed. I have carefully examined the respective arguments addressed on behalf of the parties and have gone through the judgments cited at the bar. It was admitted before me by both the learned counsel that the parties were not in physical possession of the disputed property and that the same was under tenancy of Nigerian Embassy.
3. The facts of the case Huma Enterprises v. S. Pir Ali Shah were that initially Huma Enterprises a partnership firm filed a suit against Pir Ali Shah and others on 29-11-1973 for a declaration that the letter dated 2-11-1973 was illegal, ultra vires of the powers and constitution of National Motors Limited and for permanent injunction restraining the defendants from acting under the said cancellation letter. It was pleaded in written statement by National Motors Limited that the dealership agreement was lawfully terminated by them under Caluse 20 of the agreement. The learned Judge framed issues on the pleadings of the parties, recorded evidence and adjourned the case for arguments. Arguments on behalf of plaintiff concluded on 9-10-1984. The case was then adjourned to 23-10-1984 for arguments on behalf of the defendants: On that date an application under Order VI, Rule 17 read with section 151, C . P . C . Was filed by Human Enterprises Limited for amendment of the plaint to, add a prayer for damages against defendant No.2 equivalent to commission allowed to the transferee/ successor of the plaintiff's dealership rights. It was held by the learned Judge that even at this late stage amendment of plaint could be permitted in appropriate cases for compelling reasons or in the interest of justice. However, on merits of the case the learned Judge dismissed the application for amendment to add additional prayer for damages. This judgment was of no help to respondent No. l because initially the suit of Huma Enterprises was for declaration. Through an application for amendment an additional prayer for damages was sought to be added. If this prayer had been allowed the nature of suit would have changed. The prayer for damages was not relatable to prayer for declaration in the initial suit.
The prayer for damages was based on totally different cause of action and did nc` flow out of the plaint initially filed by Huma Enterprises. This judgment is not applicable to facts and circumstances of this case.
In the instant case Dr. Imdad Ali initially filed a suit for declaration that he was owner in possession of House No. F-o/2 Islamabad. This assertion was controverted on behalf of respondent No.1 Mst.
Nawab Jahan Begum. The parties led evidence in support of their respective claims. The order of this Court dated 10-7-1974 in Civil Revision No. 701 of 1069 was recorded in an application for temporary injunction before the parties adduced evidence during trial of the suit. It appears that after close of evidence of the parties Dr. Imdad Ali plaintiff during arguments felt that in order to remove any possible technical objection the suit for mere declaration be converted into suit for possession of the . To convert a suit for declaration in a suit for possession does not amount to change .In the form of suit. The prayer 'or relief of possession in this case is no based on any new cause of action. It in fact is an ancillary and consequential relief originally sough by the plaintiff in the plaint. It will not result in change of character or substain of the suit. No new relief is sought to be added through this application for amendment of the plaint. It was held by learned Judges of Supreme Court in the judgment in Ahsan Kausar v. Ahmad Zaman Khan that "delay alone in applying for amendment or expiry of period of limitation is not ground for refusing amendment in plaint. Merely introducing an additional prayer in the suit without changing the substance and character of the cause of action set out in the plaint cannot b refused at any stage. Order VI, Rule 17, C.P.C. Confers an enabling power on the Court in promotion of the underlying principle of law that every trial of a civil dispute must determine the real question in controversy between the parties, because the law favour adjudication of disputes on merits and avoidance of multiplicity o litigation. As already emphasised by this Court rules of procedure are intended to secure the proper administration of justice and could, 13 therefore, be subordinate to that purpose, so that full power of amendment must be enjoyed by the Court in order to achieve the object of complete adjudication of disputes. It is clear from this judgment that delay by itself is no ground to refuse amendment. In view of the judgment in the case of Ahsan Kausar I consider it unnecessary to refer to other judgments cited on behalf of the petitioner.
4. A perusal of the impugned orders dated 10-7-1987 passed by learned Senior Civil Judge Islamabad and order dated 17-12-1987 recorded by learned Additional District Judge, Islamabad would show that the two Courts did not at all take in consideration the law as, well as the judgments pronounced on the subject by the Supreme Court in dealing with the application for amendment of plaint. The two orders were clearly passed illegally and without lawful authority. The two orders are declared void and set aside. This petition is accepted leaving the parties to bear their own costs. The parties are directed to appear before learned Senior Civil Judge, Islamabad on 10-11-1988 on which date Dr. Imdad Ali petitioner will file amended plaint with appropriate court-fee.