This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Lahore, dated 9th of July 1973, where--by he dismissed the appeal of the appellants.
2. The facts of the case are that the respondent filed his suit for declara--petition and permanent injunction on 13th of May 1960, to the effect that he was the sole owner of the property in question and the appellants may be restrained from interfering with his possession over the same. On the plead--ings of the parties the learned trial Court framed the two preliminary issues .As to whether the respondent-plaintiff was in possession of the suit property and as such could bring his suit for declaration only, and what was the correct value of the suit for the purposes of court-fee and jurisdiction.
The learned trial Court found that the plot of land situated on the back .Of the shop and Khokhas was not in physical possession of the respondent and as such the suit for declaration in respect of the said portion of the property was not maintainable which otherwise was found maintainable in regard to the rest of the property. The respondent challenged this order in appeal before the learned District Judge but the same was dismissed. He ultimately filed his amended plaint in accordance with the decision of the learned trial Court for possession of the plot of land which was held not to be in his possession and also paid the court-fee accordingly. The suit of the respondent was decreed by the learned trial Court by his judgment dated 29th of May 1972. This judgment and decree was challenged in appeal before the learned District Judge by the appellants but the same was dismissed by .Him by his judgment dated 9th of July 1973.
3. The only point which has been urged by the learned counsel on be--half of the appellants, is that in the absence of any application for the pur--pose of amending the plaint the learned trial Court was not competent to .Direct the respondent to amend his plaint so as to include the plea of posses--sion. He in this regard has relied upon' Shaja-ul-Malik v. Firm Abdul Ghafoor Qayyum (PLD 1964 Pesb. 11The facts of the case as relied upon are that Abdul Ghafoor one of the partners of the firm died on 14th of April 1958 whereas the cause of action according to the plaint arose on 2-1- 1960 and the suit was instituted on 3-9-1960. The petitioner in that case took objection with regard to the main--tainability of the suit right from the beginning while the respondents insisted that the suit was maintainable. However, the learned trial Court, in view of the authority reported as Continental Tyre & Rubber Company, Rawalpindi Cantt. v. Murree-Kashmir Automobile Store (AIR 1934 Lah. 157directed the plaintiffs-respondents to amend the plaint. The defendant-petitioner before the High Court challenged the order of the trial Court on the ground that no amendment could be directed to be made by the Court in the absence of any application having been filed in this behalf. The learned Single, Judge of the Peshawar High Court relying upon the authorities Hira Ram v. Jemal and others (AIR 1929 Lah. 820) and Mehtab Singh v. Dayal Singh (A 19 1939 Lah. 172) accepted the civil revision holding that the order of the Court in directing the plaintiffs-respondents to amend the plaint was not warranted by law.
It is significant to notice that in the authorities relied upon by the learned Single Judge of the Peshawar High Court, the plaintiffs had approached the High Court challenging the validity of the impugned orders, whereby the Court had either itself amended the plaint or had directed the plaintiff to amend the same in the absence of any application. The purport of the authorities as referred to above is that nobody can be compelled to amend the pleadings. The Court is only to allow amendment in the pleadings and if the order in this regard is not followed then the effect of the same has to be seen by the Court. Further in the Peshawar case the defendant had challenged the validity of the order directing the plaintiff to amend the plaint in the absence of any application.
The purport of the authorities as referred to above is that nobody can be compelled to amend the pleadings. The Court is only to allow amendment in the pleadings and if the order in this regard is not followed then the effect of the same has to be seen by the Court. Further, in the Peshawar case the defendant had challenged the validity of the order directing the plaintiff to amend the plaint in the absence of any application in this behalf. The principle as laid down in AIR 1929 Lah. 820 is, as mentioned above, that nobody should be compelled to amend the pleadings and the same has been followed in the Peshawar case. I feel that the true purport of the said authorities has not been appreciated in the Peshawar case. Since the plaintiffs in those cases were reluctant to accept the amendment as directed to be made by the trial Court, therefore, the respective orders passed in that behalf were challenged before the High Court on the ground that their case on the basis of the plaint as framed should be disposed of and not on the basis of the plaint to be amended at the direction of the learned trial Court. The present R. S. A. Has not been filed by the plaintiff, who has accepted the amendment to be made at the instance of the learned trial Court. It means, as far the plaintiff in the present case is concerned question of his being com--pelled to amend the plaint does not arise. However, if he had still felt reluctant after the order of the learned District Judge, passed against him to amend the plaint then he could certainly approach the High Court against the direction of the learned trial Court against his wishes to amend the plaint. Obviously he has not done so and in the circumstances of the case the defen--dant-appellant cannot say that the plaintiff -respondent has been compelled to amend his plaint.
5. The plaintiff in Continental Tyre & Rubber Company, Rawalpindi Cantt. v. Murree-Kashmir Automobile Store (1935 1 C 363 (sic)) was directed by a learned Judge of this Court to make necessary amendment in his plaint so as to make the suit maintainable. The facts of the case are that a civil suit was filed on be--half of a firm named Continental Tyre & Rubber Company, Rawalpindi through Lala Amar Nath Suri, partner, in the Court of Small Causes at Rawalpindi. A preliminary objection was raised that the suit could not be filed in the name of the firm as there was only one partner left, the other partner having severed his connection before the institution of the suit. This objection was upheld by the Courts below. It is significant to notice that the plaintiff at the revisional stage before the High Court contended that his suit in the present form was maintainable. However, the High , Court felt that his contention was not likely to be accepted easily.
In the circum--stances the revision petition was accepted and necessary amendment in the plaint was directed to be made so as to make the suit maintainable. In that case no application was filed for amendment of the plaint, rather on the contrary it was contended throughout that the suit as filed was maintainable.
6. Further in the Peshawar case legal representatives of the deceased partner were directed to be brought on record by way of amendment in the plaint, after the lapse of limitation period prescribed for the suit. No such point is involved in the present case wherein ' by including the plea of posses--sion, nature of the plaint is not changed.
6-A. Moreover, the power of the Court is not fettered under rule, 16 of Order VI, C. P. C. To strike out or amend any matter in any pleadings which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. In the present case unnecessary or scanda--lous matter may not be there, but the absence of the plea of possession can tend to delay the trial of the suit and in the circumstances if the learned trial Court has suo motu directed the plaintiff to amend the plaint so as to include the plea of possession, its order in this behalf is warranted by law.
7. As for the proposition that the power under rule 16 of Order VI can be invoked suo moto by the Court, reliance can be placed upon S. M. Ayub v. Syed Yousaf Shah and others (PLD 1967 SC 486
8. For the aforesaid reasons, I do not find any reason to interfere with the impugned judgment and decree. The appeal having no substance is-here--by dismissed in limine.