This revision arises from the order dated 21-12-1988 of the learned Civil Judge Ist Class, Lahore, whereby he refused to allow the petitioners-defendants' application filed on 17-12-1988 for amendment of their written statement submitted some ten years earlier on 14-12-1977.
2. The respondent-plaintiff Inayat Ullah Qureshi brought the suit for specific performance .Of an agreement to sell allegedly made in his favour by the petitioners on the 8th of June, 1976, in regard to the sale of the house in dispute for a sum of Rs. 10,50,000. He claimed that being a tenant of the house under the petitioners on a monthly rental of Rs. 1,100, he was offered by them to purchase the same whereupon he paid them an earnest amount of Rs. 1,50,000. Through a cheque, agreed to pay 50 per cent of the remaining within three months and the rest at the time of registration of the sale-deed. He explained that the agreement was entered into by the respondent Malik Mumtaz Ahmad Khan for himself and the petitioners under the foot of their power of attorney a photostat whereof he agreed to supply him in due course. According to him there was some avoidance on the part of the petitioners to complete the contract despite his demands made through registered notices and hence the suit.
3. The petitioners as also Malik Mumtaz Ahmad Khan, now cited as respondent in this petition, contested the suit by filing separate written statements. The latter conceded that though he had entered into the agreement, yet he denied to have concluded the s me on behalf of the petitioners.
His stance was that the respondent Inayat Ullah Qureshi had taken upon himself to persuade the petitioners to agree to the sale and that in case they did not the earnest amount would be applied to the arrears of rent. He added that he held no power of attorney under the petitioners and that the one executed by them in his favour in 1967 was never delivered to him, nor acted upon. The petitioners categorically denied the agreement, or receipt of any consideration amount and maintained that the sum of Rs. 1,50,000 represented the arrears of rent. They pleaded that the so- called agreement was a contrivance made by him to ward off eviction on the ground of default. In para 7 of their written statement, they took up the plea that the power of attorney executed by them in favour of Malik Mumtaz Ahmad Khan m 1967 had been kept by them all along and was never acted upon. They further claimed that the plaintiff and the aforesaid Malik Mumtaz Ahmad Khan had colluded to cause harm to them by manipulating the so-called agreement of sale or entering into correspondence with each other under that garb.
4. The suit was being tried on issues arising out of the pleadings when over an interlocutory matter it was brought to this Court. Noting that its disposal was long overdue a direction was made for day-to-day proceedings in order to arrange its final disposal. The trial Court was taking steps to effect compliance with the direction when, after a long pendency of about ten years, the petitioners---defendants filed an application on 17-12-1988 for amendment of their written statement so as to take a plea that one of them namely, Malik Zaffar Ahmad Khan was a minor on the date of the alleged agreement and, therefore, the same was bad in law. The petition was seriously opposed pointing out that it was mala fide, brought very late with a view to avoid disposal of the suit for which already a direction had been made by this Court. It was pointed out that evidence by the respondent-plaintiff and that of defendant No. 1 Malik Mumtaz Ahmad Khan had already been concluded whereas the petitioners were allowed the last opportunity to produce evidence on 17-12-1988 when instead they prayed for amendment of the their written statement. As regards the alleged minority of the petitioner Zaffar Ahmad, it was explained in detail that no reference was made to this fact at any stage of proceedings, nor in the correspondence, nor in the registered power of attorney dated 26-5-1967 whereby he had apparently authorised Malik Mumtaz Ahmad Khan to make the sale of his share in the house. Additionally, it was submitted that the proposed amendment would be in deviation of the pleadings and that it would cause reopening of the entire case after such a long pendency thereof.
5. The trial Court disallowed the application taking note of the fact that the petitioners had not been vigilant enough to take it up in time and that it was mala fide particularly in view of the fact that Malik Zaffar Ahmad had shown himself to be a major person in the power of attorney marked 'B' dated 26-5-1967, that is ten years prior to the execution of the agreement, and twenty-one years before seeking the amendment thereabout. It noticed that the intent behind the application was to further prolong disposal of the case by deviating from the pleadings which to all intents and purposes bound the parties. This is how it believed that the application was mala fide.
6. Mr. Amir Alain Khan for the petitioners relying upon Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345) argued that generally speaking delay alone in applying for amendment or expiry of period of limitation or increase in court-fee or change of jurisdiction could not be grounds for refusing amendment in the plaint and that the very phraseology of the provisions of Order VI Rule 17, C.P.C. Permitted amendments of the pleadings at any stage of the proceedings. He emphasized that the only prohibition as spelt out by the Supreme Court was that no new case may be set up. Indeed he claimed that amendments ought to be allowed as a matter of obligation if those are considered necessary for the purpose of determining the real question in controversy. He asserted that the petitioners had formidable evidence in the shape of a Matriculation Certificate to show that Zaffar Ahmad was a minor at the time of the alleged agreement and that the same did not, in any way, tend to set up a new case. Conversely according to him it fell upon the Court itself to see that a minor's interest was not jeopardised and, therefore, to permit all possible evidence to determine if the contract as on behalf of such a minor was at all effective. All rules of procedure, he urged vehemently, were intended to advance justice rather than to curb it on technicalities.
7. On the other hand Mr. Mahfoozul Haq, Advocate watching the brief for respondent No. 1 reiterated that such a long delay had had to be explained particularly when the concerned petitioner showed himself to be a major person as early as 1967, that is ten years earlier than the execution of the agreement in question. He pointed out that evidence on behalf of both the respondents had been concluded; and that the petitioners were given last adjournment to the, series to produce their own when they took a turn to deviate from their pleadings with a purpose to thwart disposal of the case for which already a direction was made by this Court. He claimed that equities did not permit indulgence in favour of the petitioners for the reason of their own conduct to having shown Zaffar Ahmad to be a major over a long period of twenty-one years.
8. The very precedent relied upon by learned counsel for the petitioners did not accept the right of a defendant "to starve a plaintiff out of his right through the technicalities of procedure". Ordinarily they were expected to be bound to their pleadings as also their conduct in having shown Zaffar Ahmad as major since 1967. It dawned upon them late in the day that he was minor at the relevant time and by availing the technical right of getting their written statement amended, were minded for all purposes "to starve the plaintiff out of his right". Otherwise the agreement was conceded at least by one of them, Malik Mumtaz Ahmad Khan, who was shown to have also acted as Attorney for the petitioner by virtue of a registered Mukhtar Nama executed ten years earlier than the agreement. The respondent had relied upon both these documents claiming a sort of substantive right which may not be easily denied to him by starving him out on the plea that one of the petitioners was a minor
9. The latest pronouncement on the point may be found in Ijaz Mahmood and others v. Manzoor Hussain and others (1988 SCM R 34) which being of later origin from the Supreme Court itself, had to be preferred to Mst. Ghulam Bibi's case. Amendment m the written statement was refused as the application was made at a stage when the evidence of both the parties had been recorded and that in case it were allowed, it would have entailed further recording of evidence. Another reason to refuse the same was that no explanation was offered by the petitioners for not taking up the said pica at the initial stages of the trial. Applying this test, we find here that evidence at least of both the respondents had already been concluded, while the petitioners were bound to avail the last opportunity to produce their own. In an earlier round to the High Court a direction was passed to conclude the trial post haste. An explanation was due as to why the application was not made "at the initial stages of the trial". No ground whatsoever was shown in the application as to why such a long delay was taken, nor was reference made to any particular evidence including the Matriculation A Certificate in regard to the birth entry of Zaffar Ahmad petitioner. Nor indeed was it possible to show how he executed power of attorney m 1967 if he was really a minor then. He was treated by all concerned to be major at that time as well as in 1977 when the agreement in question was entered into. Obviously the requirements as expounded in Ijaz Mahmood's case were not squarely met to seek amendment of the written statement. The application was rightly dismissed by the trial Court. The revision is as well dismissed with costs throughout.