1. ' SHAFIUR RAHMAN, J.--The petitioner, a plaintiff in a pending Civil Suit on the original side in the High Court, seeks leave to appeal whereby his application seeking amendment of the plaint was rejected by the learned Judge in Chamber and his Appeal against such rejection was dismissed by the Appeal Bench on 14-4-1987.
2. ' The petitioner claimed to be the legal owner/allottee of Plot No,123, Sector 6/E Sajidabad, Orangi Town, Karachi. He alleged that he had raised construction and a portion of the property constructed had been given over to Mst. Haseena Begum, the predecessor-in-interest of the respondents, for her temporary occupation as a licensee. On her refusal to hand over the possession of that portion he instituted a Civil Suit for possession and mesne profits. While that suit was pending, the predecessor-in-interest of the respondents instituted a suit on the original side of the High Court challenging the allotment of the plot to the petitioner and claiming it for herself. The Civil Suit filed by the petitioner was transferred to the original side of the High Court and two suits were consolidated. The petitioner moved an application under Order VI, Rule 17 seeking amendment of the plaint. What was sought to be pleaded by the proposed amendment was the introduction of the fact that he had been ousted from the property and for that reason was seeking possession of the entire property and revaluation of the suit by enhancing its value from Rs,200 to Rs,51,000. He also claimed mesne profits in respect of the shop let out by the respondents after ousting the petitioner. The trial Court rejected the amendment on the following two grounds:--
(i) "I find that there is a separate cause of action, as alleged by the plaintiff himself and he may file a separate suit in respect of the other room and the shops in question, subject to all just exceptions."
3. "I am clear in my mind that if amendment as sought for, is allowed it will enlarge the scope of the suit and substantial change in the relief claimed in the original suit will follow. I am satisfied in my mind that it will change the nature of the suit and the cause of action."
4. ' The Appeal Bench of the High Court considering all the case-law referred to by the learned counsel for the petitioner, upheld that order by observing as follows:- "In the instant case a perusal of the original plaint filed by the appellant and the application for the amendment will indicate that factually the appellant attempted not only to enlarge the scope of a suit but to change the complexion of the suit. It may be observed that according to the averments in the amendment application the deceased had let out two shops to the tenant in 1981. He is seeking the possession of the above shops through the above amendment application without even impleading the tenants in occupation. The main issue in the appellant's suit is whether he had granted licence to the deceased in respect of one of the two rooms in the said house and, whether that licence was revoked by him and whether she refused to hand over the possession after revocation. It is true that in the written statement she had pleaded her title to the suit property but that was done as far back as in 1977 when she filed the written statement. In our view the learned Single Judge has exercised the discretion in accordance with law to which no exception can be taken in this appeal."
5. ' Mr. Samiuddin Sami, Advocate, the learned counsel for the petitioner has referred us to the same decisions which were brought to the notice of the Appeal Bench of the High Court for making out a case for amendment. It is, however, conceded by him that without bringing on the record the occuparts of the shops as parties to the proceedings, he could not sue Mst. Haseena Begum for mesne profits of the same. All the same, he states that he orally made a request for deleting the two shops from the suit in order to over-come this objection. We do not find any mention of such an oral submission having been made. Be that as it may, such a request had to be made in writing so that the opponents had notice of it and could meet any such suggestion.
6. ' Keeping in view the fact that there is a suit filed by the respondents which has been consolidated with the present suit of the petitioner, and the averment that the dispossession took place from the rest of the property after the institution of the suit, physically there may be an enlargement in the subject-matter of the suit but the nature of the suit would remain just the same viz. Ouster by a party who entered into the premises as alleged as a licensee. On that view of the matter it appears that such a prayer would have required serious consideration. However, we are convinced with the reason given by the Appeal Bench for not allowing the amendment namely, of the absence of the necessary parties in respect of the two shops was indeed fatal to the request and it was rightly refused.
7. ' We would, therefore, disallow leave to appeal. However, it will be open to the petitioner to seek any lawful amendment in the plaint, which he can justify disclosing in his application the full text of the amendment and the names of the parties against whom such amendment is directed.