MALIK MUHAMHAD QAYYUM, J.--This Regular First Appeal as-, is the judgment and decree dated 10th of July, 1984, passed by a Civil Judge ist Class, Lahore, whereby the suit of the respondent for recovery of Rs. 2.13.910.49 was decreed against the appellants.
2. The suit, which was filed on 7th of October, 1976, was based on the allegations that the premises, known as the Airport Restaurant situated al Lahore Airport were leased out to the appellants by the respondent for a period of five years on the terms and conditions specified in the agreement executed between them on 25th February, 1970 which inter alia, provided for payment on monthly rent at the rate of 17 per cent of the gross profits from the Restaurant subject to a minimum of Rs.
6,650. According to the respondent, the appellants remained in possession of the premises from 1st of November, 1969 till 8-1-1975 but they paid a sum of Rs.3,05,002.94 only though total rent payable of this period was Rs.5,18,913/42 and balance of Rs.2, 13,910.48 was still outstanding against them.
This suit was resisted by the appellants by filing a written statement in which the agreement of lease as also the minimum rate of monthly rent at Rs.6,650 was not denied but it was averred that the rate of rent was fixed on the basis of estimated receipts which fell far beyond the expectations of the parties due to reasons beyond their control. It was also objected that the suit was barred by time and suffered from mis joinder of causes of actions.
On the pleadings of the parties, the trial Court framed six issues. The respondent/plaintiff produced its evidence which comprised of the statements of P.W. 1, Muhammad Younis, Personal Assistant, Legal Branch, Civil Aviation, P.W. 2, Muhammsd Hussain, Administration Assistant of the said Authority and documents Exs.P-1 to P-55/. The appellants, however, failed to produce any evidence which was closed under Order XVII, rule 3, C.P.C. On 8th of July, 1984. The suit was decreed by the trial Court on 10th of July, 1984 which led the appellants to file this appeal.
3. During the course of hearing of this appeal, appellants have filed two civil miscellaneous applications, C.M. No.3956-C/85, for production of additional evidence, and C.M. No. 2265-C/88 for amendment of written statement, which have been resisted by the respondent and are being disposed of alongwith the appeal by this judgment.
4. The learned counsel for the appellants in the first instance challenged the correctness of the order dated 8-7-1984, whereby their evidence was closed by the trial Court under Order XVII, rule 3, C.P.C. He submitted that the appellants were not allowed sufficient opportunity to produce evidence and the trial Court acted in haste while closing it. We however, see no merit in this argument of the learned counsel. From the record, it appears that despite being allowed three opportunities, no evidence was produced by the appellants. On their request, the trial Court had adjourned the case from 27th of May, 1984 to 20-6-1984 and then to 8th of July, 1984. However, since on that date also the evidence was not A present nor any sufficient cause was shown for the adjournment, the trial Court refused to adjourn the case and proceeded under Order XVII, rule 3 C.P.C. And closed the evident; . It is, therefore, obvious from the above, that the appellants were allowed sufficient opportunity to produce evidence and it was on account of their own neglect that their evidence was closed. .
5. 1t was next contended by the learned counsel that the respondent had failed to prove that the suit amount was due or payable, therefore, the suit could not have been decreed by the trial Court.
This contention is devoid of any force. The fact that the appellants remained in possession of the premises from lst of Novmber, 1969 to 8-1-1975 as lessees and the minimum rate of monthly rent at Rs. 6,650, was not denied by the appellants in the written statement nor even before this Court. In the plaint it was asserted that out of the total rent of Rs.5,18, 913.42, the appellants had, paid a sum of Rs3,05,002.94 only, thus leaving a balance of Rs.2,13,910.48. This as assertion was not specifically disputed. On these admitted facts, the liability to pay the said amount stood proved. In any case, it was for the appellants to have shown that they had discharged their liability by making the payment which they failed to do. Furthermore P.W.1, Muhammad Younis fully supported the case of the respondent/plaintiff in this behalf. The learned counsel, however, submitted that the respondent should have produced g documentary evidence to prove that the amount was due or payable. This contention is without any force. There is no rule of law which requires that a particular fact must be proved through production of documents only. Even otherwise, as already noticed at no stage was it ever asserted that the entire amount stood paid by the appellants to the respondent. Their case, on the other hand, appears to have been that, as the rent was worked out on the basis of estimated profits which had fallen due- to the reasons beyond the control of the appellants, they should have been allowed reduction or rebate in the rate of rent. Even before this Court, in the memorandum of appeal it has been asserted that the appellants were assured by the respondent that the rent would be reduced but nothing was done in this behalf as a result whereof the appellants discontinued the payment of rent. In these circumstances, we do not see how the learned counsel could contend that the respondent had failed to prove that the amount in question was due from the appellants.
6.It was also argued that the appellants were entitled to rebate/reduction in the rate of rent as the business of Restaurant was adversely effected by circumstances beyond their control. In the absence of any agreement between the parties to this effect, the grant of rebate was in the discretion of the respondent and could not be claimed as of right by the appellants. The contractual rate agreed to by the parties, could not be varied or departed from except with the consent of both the parties. In the present case there is no evidence to show that the respondent had ever agreed to the grant of rebate. The learned counsel, however, in this respect, wanted to rely upon letter, dated 22nd of July, 1966 from the Director-General of Civil Aviation to the Regional Controller of Civil Aviation and Airport Manager Lahore, which was sought to be produced as additional evidence. This letter relates to a previous lease in respect of which certain concessions in the payment of rent were granted by the Government. This letter, however, has no relevance for the present purpose and does nor advance the case of the appellants as admittedly it does not pertain to the lease out of which this appeal has arisen. The appellants cannot insist that having once granted rebate in connection with a previous lease, the respondent must allow the reduction in rent in respect of the present lease also.
7. This brings us to the application for additional evidence filed by the Appellants. Order 41, rule 27, C.P.C. Provides that the parties shall not as of right be entitled to produce evidence in appeal but the additional evidence may be allowed to be produced by the appellate Court in its discretion, for reasons to be recorded by it, if the conditions laid down in the rule are satisfied. It is not the case of the appellants that they were not allowed to produce these documents in evidence by the trial Court. On the other hand, it appears that these documents were at no stage produced before the trial Court though, admittedly the same were in possession of the appellants. To add to it, is the fact that even in the list of reliance filed along with the written statement, these documents were not mentioned. In the application for additional evidence also no reason has been given as to why these documents were withheld and not produced before the trial Court. There is, therefore, no justification for allowing the appellants to produce any additional evidence at this stage so as to enable them, to fill in the gaps or F lacunae in their case. We have examined the evidence already on the record and find no difficulty in deciding the appeal on its basis.
Even otherwise, the production of the two documents mentioned in the application would not in any manner, advance the case of the appellants. The first document i.e., letter, dated 22nd of July, 1966, as already observed, is not relevant for the decision of the present case. So far as the other document namely the agreement between the parties dated 25-2-1970 is concerned, the learned counsel was asked to point out its relevancy. He submitted that according to the terms of the agreement the respondent was under an obligation to provide bar facilities for sale of liquor to the appellants in the demised premises which it had failed to do. However, this assertion of the learned counsel, is contrary to the contents of the agreement itself, particularly clause (5) which places the responsibility on the appellants to arrange for licence from the Local Authorities for the sale of liquor. No liability was undertaken by the respondent in this respect. We, therefore, find no justification for permitting to produce additional evidence and dismiss the Civil Misc. Application No. 3956-C/85.
8. Reverting to C.M. No.2265-C/88, which has been filed for amendment of the written statement, it is to be noticed that the plea sought to be raised by way of amendment is the same which the appellants wanted to establish by producing additional evidence namely that no bar facilities for sale of liquor were made available to the appellants by the respondent. As already observed above while disposing of the application for additional evidence this assertion is belied by the agreement itself, clause (5) whereof places the responsibility on the appellants to arrange for licence from the Local Authorities.
The amendment of pleadings can be allowed under Order VI, rule 17 C.P.C. If it is necessary. For determining the real matter in controversy. In the G present case the real question was as to whether or not the appellants have discharged their liability by paying the rent at the agreed rate.
The proposed amendment does not, in any manner, help in the resolution of this controversy. The learned counsel has relied upon Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345) to contend that the Court should be liberal in allowing amendment and the permission in this respect can be granted even by an appellate Court. There is no cavil with this proposition but as observed by the Supreme Court in the precedent case, the proposed amendment should be necessary for determining the real question in controversy and the nature of defence or the cause of action should not be allowed to be changed, and also, that the application should have been filed bona fide. To us it appears that not only the proposed amendment is without any foundation but also that the application is not bona fide and has been made only with a view to prolong the proceedings. Further if the proposed amendment is allowed, at this stage, the nature of the defence of the appellants shall be completely changed inasmuch as in the written statement it was never the case of the appellants that the respondent had failed to perform any part of its obligation under, the agreement but what was stated, was that the appellants were entitled to rebate concession. They cannot, therefore, now take totally different and inconsistent plea. Mst.
Ghulam Bibi and others v. Saras Khan and others (PLD 1985 SC 345) and Allah Wasaya and others v. Abdul Rahim (PLD 1953 Baghdad ul Jadid 77) are referred.
9.The learned counsel next relied upon Mst. Sardar Begum v. Malik Khalid Mahmood and others (1986 CLC 2342) to contend that the considerations for allowing amendment in the written statement are different from that of amendment in the plaint and as such the appellants could even change the nature of their defence. We regret our inability to agree with the learned counsel.
Order VI, rule 17, C.P.C. Makes no distinction between a plaint and a written statement in this respect, both of which are undoubtedly parts of pleadings. There is abundant case law for the view that the same principles apply H to the amendment of written statement as are applicable in the case of a plaint and the nature of defence cannot be allowed to be changed. Reference may be made to Vedachala Chettiar v. Ameena Bi Animal and others (AIR 1944 Madras 121), Saradindu Mukherjee v. Jahar Lall Agarwalla (AIR 1942 Cal. 153, G. Mckenzie & Co. Ltd. v. Tatanlal Surajmall (AIR 1935 Patna 463) and Gulab and another v. Fazal Ilahi (PLD 1955 Lah. 26). The observations made in Sardar Begum's case supra (1986 CLC 2342) relied upon by the learned counsel are qualified by its own facts and the generality of these observations cannot be extended to the case in hand. We, therefore, find no force in C.M. Nos. 3956-C of 1985 and 2265-C of 1988.
For the foregoing reasons we see no merit in the appeal and dismiss it with no order as to costs.
C.M. Nos. 3956-C/85 and 2265-C/88 also stand dismissed.