' This petition in revision under section 115 of the Civil Procedure Code, 1908, is directed against the order dated 19th February,1990, of learned Civil Judge-IV, Dera Ismail Khan, whereby she dismissed an application for amendment of plaint.
2. Haji Mahmood Khan instituted a suit on 2nd December, 1987, against Khalilur Rehman Khan and his father Haji Abdur Rehman for recovery of Rs,1,05,000. It was averred in the plaint that defendant No,1 purchased Truck No, DNA 4445 for a sum of Rs,2,80,000 from the plaintiff on the foot of Dastawaiz' dated 3rd December, 1984; that the defendants paid a sum of Rs,1,75,000 at Rs,10,000 per mensem as the last instalment but stopped to pay it after 13th September, 1987. The plaintiff claimed the balance of Rs,1,05,000. On 17th January, 1988, the defendants filed their joint written statement wherein it was, inter alia, pleaded that the suit was not maintainable in its present form.
Within a week the defendants moved an application for directing the plaintiff to file better statement in that the particulars enumerated in the plaint were vague or in the alternative for dismissal of the suit. This application was resisted controverting the assertion that the particulars in the plaint suffered from any infirmity of vaguenes and that in any case, since the Court had not made any such direction, therefore, the suit was not liable to dismissal. This application was dismissed by the trial Judge on 17th September, 1988 "as written statement has not been filed and issues have not been framed". In any case, issues were struck on 25th January, 1989, list of witnesses were filed on 4th February, 1989 while partial evidence of the plaintiff had been recorded.
On 6th January, 1990 the plaintiff filed an application under Order VI, Rule 17, C.P.C. Seeking permission to amend his plaint in the light of para-3 of the application which is to the following effect:-- {{URDU TEXT}}
3. The defendants vehemently opposed these amendments. As stated earlier, the learned trial Judge by her order dated 19th February, 1990 did not oblige the plaintiff inasmuch as he wants to take altogether different plea that truck belonged to defendants; that they had borrowed money from him and; that as security of the debt amount they had executed the agreement deed to the effect that they will transfer their truck in name of the plaintiff. Hence this revision.
4. The sole question surviving for determination is whether the amendment of the plaint had been rightly refused.
5. Sardar Allah Nawaz Khan, learned counsel for the petitioner, contended that the proposed amendment does not change "the main substance of suit" and further that all the terms of agreement (Dastawaiz) in respect of loan advance but executed by way of collateral security could not be incorporated and amendment to incorporate the said omission in terms of para 3 of the plaint for recovery of debt was permissible. Reliance was placed on: (1) Mst. Ghulam Bibi v.
Sarsa Khan (PLD 1985 Supreme Court 345) and (2) K.M. Muneer v. Rashid Ahmed (PLD 1964 (W.P.)
Karachi 172).
6. As against this, Mr. Abdul Latif Baluch, learned counsel for the respondents argued that notwithstanding the prayer for better statement and thereafter the preliminary objection raised in the written statement, the petitioner ignored to seek amendment. He also reiterated his objection that the amendment sought for would be tantamount to substitution of a distinct cause of action besides altering the cause of action. In support of his stand reference was made to Ghulam Bibi's case cited above besides Mulchand v. Indra (PLD 1985 Karachi 362). Lastly, it was submitted that the order either allowing or disallowing amendment in the pleadings being not a "case decided", the High Court was not competent to entertain revision application against such order. In this context Ahmed Din v. Australasia Bank Ltd. (1971 SCMR 507) was cited.
7. Before adverting to the case-law cited by the learned counsel for the petitioner, I would discuss the Mulchand's case cited by the learned counsel for the respondents because guidelines furnished by the august Supreme Court on the amendment of pleadings in Ghulam Bibi's case have been solicited by both the parties. In Mulchand's case the second contention that in the application for amendment no reason was shown for delay was affirmed in the constitutional petition filed by the petitioner. In the instant case any such objection was raised neither before the Court nor it is otherwise plausible. The reasons for the amendment in the plaint have been fully explained in para 2 of the application. The law laid down in Mulchand's case has, therefore, no bearing on the proposition surviving for determination in this case. There is no cavil with the proposition that order "allowing" amendment of pleading is not a 'case decided' within the meanings of the section 115 C.P.C. It is, however, now settled that an order refusing amendment of pleadings does amount to a "case decided", and is, therefore, amenable to the revisional jurisdiction within the contemplation of section 115; C.P.C. If an authority is needed then reference may profitable be made to Bashir Ahmed v. Qaiser Ali (PLD 1973 SC 507).
8. In Ghulam Bibi's case, a suit was filed by one Muhammad Aslam, seeking a declaration that he was owner-in-possession of land described therein and for injunction to restrain the respondents from interfering with his possession. The respondents therein, inter alia, pleaded that such a suit for declaration and injunction was not maintainable in its present form which plea was reflected in the issue as to "whether the suit was not maintainable in its present form?" The trial Court decided the issue against the respondents and decreed the suit. The respondents went in appeal and succeeded in the Appellate Court which held that the appellant should have filed a suit for specific performance of the agreement and not a declaratory suit and thus reversed the findings of the trial Judge on the issue reproduced above and held the suit not to be maintainable in the form in which it had been filed. In second appeal an application was filed to amend the plaint, but it was rejected by the High Court on the ground that it was a belated request and if allowed it would cause injustice and injury to the opposite party particularly in the context that an objection was taken in the written-statement but no step was taken to rectify it. Their Lordships of the Supreme Court were pleased to accept the appeal and in consequence while setting aside the judgment of the High Court allowed the application for amendment of the plaint subject to payment of costs.
9. It would thus be seen that the ratio in Ghulam Bibi's case supports the stand taken by the learned counsel for the petitioner. The two objections firstly of maintainability of suit in the form in which it was framed and secondly of belated application for amendment notwithstanding the objection of defective frame of the suit were repelled in Ghulam Bibi's case. Respectfully following the dictum laid down in this authoritative pronouncement of the august Supreme Court I hold that once the Court decides that the amendment is necessary for the purpose of determining the real question as required under Order VI, Rule 17, C.P.C., the Court is required by law not only to allow an application for amendment made by a party in that behalf but is also hound to direct the amendment for the said purpose. This proposition is, however, subject to the condition that the cause of action does not change the main substance and nature of the suit.
10. In the present case, as stated in the application for amendment, the facts on which the petitioner relied when filing the plaint would not undergo any substantial change. The objection that the proposed amendment would bring about substantial change in the complexion of the suit or cause of action is likely to be changed stands repelled on the authority of K.M. Muneer v. Rashid Ahmed (PLD 1964 (W.P.) Karachi 172) cited at the Bar by the learned counsel for the petitioner which was also pressed into service before the trial Judge too. The facts of this case are on all fours with the case in hand. In that case, at first the plaintiff filed two suits on the basis of the two pro-notes executed by the defendant in respect of the two loans, alleged to have been advanced to the defendant. Later on, the plaintiff sought to amend the plaint in order to base the claims on the original consideration. The defendant objected to the amendment on the ground that the claim on suit had become barred by time and it was not open to the plaintiff to base the claim in suit on original consideration. These objections, were, however, ignored by Wahiduddin, J. As his Lordship then was, and relying upon the principle enunciated in Keramat Ali v. Muhammad Yunus Haji (PLD 1963 Supreme Court 191) allowed the amendment of the plaint with the following observations:--
11. "Admittedly, the plaintiffs case in both the suits from the very beginning is that the amounts in suits were advanced by him as friendly loan for commercial purpose, but based the claims on the pro-notes executed by the defendant. However, later on the plaintiff sought the amendment of the plaint to base the claims on the basis of the original liability in order to obviate the technical objection about the admissibility of pro-notes in evidence. In my opinion by amending the pleading for this purpose the plaintiff cannot be charged with changing the nature of the suit. It is open in law to a plaintiff in cases where in respect of an original liability to pay a certain sum of money, a document such as pro-note etc., is found inadmissible, to base the claim on original consideration and such amendment in number of judicial decisions has been held not to amount to a substitution of a distinct cause of action. It is nothing more than adding a new ground of relief, which certainly cannot be said to alter the character of the suit. I would, therefore, repel the contention of the defendant in this respect and hold that the amendment was properly allowed as it does not in the least alter the nature of the suit."
11. In view of these observations and those made in Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 Supreme Court 345) the petitioner's plea to base his claim on an original liability where the document on which it is initially founded is sought to be amplified by enumerating the circumstances under which it was executed by defendants neither amounts to a substitution of the cause of action nor does it in the least change or alter the cause of action. Besides, it is also well settled that amendments which do not change or totally alter the character of the action are readily granted by Courts for "all rules or procedures are nothing but aids to proper administrations of justice".
12. In the light of the above discussion, I am constrained to observe that I am unable to endorse the narrow view of principles regulating the amendment of the pleadings taken by the learned trial Judge. I would, therefore, accept this petition in revision, set aside the impugned order of the learned trial Court and allow the petitioner-plaintiff to amend his plaint as prayed for on payment of Rs,300 as costs. There shall, however, be no order as to costs.