1. ' The facts relevant for the purposes of this revision application are that the suit hearing F.C. No, 21 of 1986 was filed by the present respondent No,1 against the present respondent No,2 in the Court of Senior Civil Judge, Ghotki for specific performance of contract and permanent injunction on the basis of an agreement of sale said to have been executed by the present respondent No,2 in favour of present respondent No,1 on 30-4-1985 with regard to sale of the suit land. In the said suit, however, the present applicants moved an application under Order 1, Rule 10, C.P.C. To he joined as defendants as tt,claimed to have purchased suit land from the present respondent No,2 vide an earlier agreement dated 24-7-1984 and consequently they were ordered to be joined as defendants by the trial Court. The present applicants claim to be in possession die suit land being haris thereof while the present respondent No,1 also claimed to have taken over the possession on 30-4-1985 in consequence of the sale agreement in his favour. During pendency of suit an application was moved by the present respondent No,1 on 30-4-1985 under Order 6, Rule 17, C.P.C.
2. Praying for the amendment in plaint for the reasons that according to him, during pendency of suit, he was dispossessed by the S.D.M. In proceedings under section 145, Cr.P.C. And that possession of the land in dispute was handed over to the preset applicants in the said criminal proceedings.
3. ' The following amendments were sought:-- "PROPOSED AMENDMENTS: No.1 In title add for possession and cancellation. No.2 No,2 Paragraph No,16-A.
4. No.3 No,3 Paragraph No,16-B No.4 No,4 In prayer clause (E)
5. ' That during the pendency of above suit the possession of the suit land was handed over by the Sub-Divisional Magistrate, Mirpur Mathello to the defendants Nos.2 to 6 as the said possession was taken by him under section 145, Cr.P.C.
6. No.5 That during the pendency of the suit the defendant No,1 sold the suit land to the defendants Nos.2 to 6 through registered sale-deed. No.6 To hand over the possession of the suit land to the plaintiff after ejecting the defendants Nos:2 to 6.
7. ' To cancel the registered sale-deed executed by the defendant No,1, in favour of defendants Nos.2 to 6 pertaining to the suit land.
8. ' And also necessary amedments in view of the above amendments."
9. ' The present applicants had objected to the said amendments and the trial Court after hearing the Advocates allowed the said application whereby the said amendment was permitted to be made in the plaint which mainly pertained to additional relief of possession being sought in the suit, in place of relief of injunction as prayed initially. The present applicants being aggrieved from the said order have preferred this revision application.
10. ' I have heard Mr.M.A. Rashid the Advocate for applicants and Mr. Paryaram the Advocate for respondent No,1. Respondent No, 2 is absent as obviously she is no more interested in the suit land.
11. Mr. M.A. Rashid, the learned counsel for the applicants has submitted that the spirit of the provision of Order 6, Rule 17, C.P.C. Is that the amendments can be permitted to be made in the pleadings provided the nature and complexion of the suit is not changed. He has placed reliance on a number of cases in support of his above contention. Mr. Paryaram, the learned counsel for the respondent No,1 has not controverted this legal position. There is no cavil about the abovesaid legal position. However, it is to be seen if in present case by introducing the abovesaid amendments nature and complexion of the suit has been changed or not. The facts of the case as admitted by both the parties are that the present respondent No,1 has based his claim on the agreement of sale executed by the present respondent No,2 on 30-4-1985 wherein he claims to have taken over the possession of the suit land. As against this the claim of the present applicants is that they had been the haris of the suit land and they had purchased the same from respondent No,2 vide an earlier agreement dated 24-7-1984 and that they had also filed a suit being F.C. Suit No,50/1986.
12. But the important fact as far as the case of the present respondent No,1/plaintiff is that the plaintiff was dispossessed by an order passed by Sub-Divisional Magistrate in proceedings under section 145, Cr. P.C. During the pendency of suit and that the possession of the suit land was handed over by the said Magistrate to the present applicants in the same proceedings. From this the learned counsel for the respondent No,1 Mr. Paryaram has argued that this is a continuation of the original cause of action and, therefore, by adding the relief of possession in such circumstances would not change the nature and complexion of the suit as the main relief of specific performance remains intact. He has further submitted that relief of possession which is sought to be added is a relief consequential to the relief of specific performance. He has placed reliance on various cases of the superior Courts wherein it has been observed that relief of possession in the shape of consequential relief, if added by way of amendment under Order 6, Rules 17, C.P.C. Would not change the complexion of the suit. It may be observed that the entire case-law that has been relied upon by the learned counsel for the respondent No,1 pertains to the suits for declaration and injunction, wherein on a subsequent dispossession of plaintiff from the suit land the relief of possession was permitted to be substituted in place of relief of injunction as a consequential relief.
13. This, I may observe is in accordance with the provisions of section 42 of the Specific Relief Act which reads as under:-- "42. Discretion of Court as to delaration of status or right.---Any person entitled to any legal character, or to any rights as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
14. Bar to such declaration.---Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
15. Explanation.---A trustee of property is a "person interested to deny". a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
16. As against the above position the present suit is mainly a suit for specific performance which falls under section 12 of the Specific Relief Act. A comparison of the two sections of the Specific Relief Act as cited above would show that in case of a declaratory suit possession can be a consequential relief and if no proper consequential relief is sought, declaration cannot be granted whereas no such condition is attached to section 12 of the Spcific Relief Act.
17. ' In the present suit it may be pertinent to point out that admittedly the relief of specific performance is available to the plaintiff only against the respondent No,2 and that the plaintiff was dispossessed by the Sub-Divisional Magistrate in proceedings under section 145, Cr.P.C. It is also admitted by Mr.Paryaram, the learned counsel for respondent No,1 that the order of the S.D.M. Of taking over possession of the suit land and handing over the same to present applicants has not been challenged in any appeal, revision of Constitutional petition. The said order therefore, stands.
18. It may further be observed that in the suit no relief has been sought against the order of the Sub- Divisional Magistrate nor any prayer is made by the plaintiff to join the Sub-Divisional Magistrate as a party to suit. In these circumstances the order passed under section 145, Cr.P.C., may be legal or illegal, stands unless set aside. Reliance may be placed on the case of United Grain and Fodder Agencies v. Muhammad Swaleb (PLD 1962 Kar. 8). Moreover the case of the plaintiff is that he was dispossessed by some body who is not a party to the suit and that too in a judicial proceeding. This shows that this act of the Sub-Divisional Magistrate would afford an independent cause of action to the plaintiff and the same cannot be said to be in continuation of the original cause of action nor does the same flow from the original transaction between the parties. No doubt the Courts have to lean in favour of administration of justice and exercise their powers liberally in order to secure the proper administration of justice but nonetheless Courts should be mindful that in case of amendments under Order 6, Rule 17, C.P.C. No power has been given to enable one distinct cause of action to be substituted for another, nor to change by amendment the subject-matter of the suit. Reliance is placed on the case of Ma Shwe Mya v Maung Mo Hnaung (AIR 1922 P.C. 249). In the above case their Lordships of the Privy Council have observed:- "All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
19. ' The learned counsel for the applicants has also produced an order passed by the trial Court on application under Order 39, Rules 1 and 2, C.P.C. Moved by the present respondent No, a. In this order the learned trial Court has itself observed that according to a letter of Mukhtiarkar dated 6- 6-1985 which is about three years prior in time to the application for amendment, moved by the respondent No,1 for seeking amendment of plaint, the present applicants are shown to be in possession. This order further shows that the plaintiff had unnecessarily tried to take over possession of the suit land from the present applicants on 11-2-1986, after obtaining status quo order from the trial Court.
20. In view of the above discussion it is obvious that the present respondent No,1 was not in possession of the suit land at the time he had filed the suit. Even if it be so, on his own showing he was dispossessed by Sub-Divisional Magistrate in judicial proceedings under section 145, Cr.P.C.And that the said order of Sub-Divisional Magistrate not having been challenged has attained finality. In this suit the relief of possession if any, would not be available to the present respondent No,1 against the vendor who is the primary party to the suit for specific performance. This cause of action is, therefore, a distinct cause of action.
21. ' For the above reasons I am of the view that the said amendments could not have been permitted by the trial Court under Order 6, Rule 17, C.P.C. I accordingly set aside the impugned order passed by the trial Court whereby the said amendments were allowed in the suit. The said amendments if incorporated in the plaint shall be struck off. There will, however, be no order as to costs.
22. ' Above are the reasons for the short order announced in Court on 11-12-1990.