' This revision petition is directed against the appellate judgment and decree passed by the learned Additional District Judge, Mardan, on 18-6-1989 reversing the judgment and decree of the learned Civil Judge First Class, Mardan, dated 6-6-1988, who had dismissed the suit of the petitioners.
2. Brief facts forming the background of the dispute are that Mst. Amirzadgai, plaintiff-petitioner brought a suit against Mst.Bakhtawara and 10 others defendants-respondents for possession by redemption of the land described in paragraphs Alif, Bays Jeem, Dal and Rey of the heading of the plaint and situated in village Sawaldher, Tehsil and District, Mardan. It was averred in the plaint that the plaintiff by mutation No.3668 dated 22-12-1949 had mortgaged the suit land to Baharuddin, predecessor-in-interest of defendants Nos.1 to 5. The mortgage being usufructuary, the defendants were approached for redemption of the land on receipt of mortgage charge but they declined to do so and hence the suit. Defendants Nos.1 to 5 in their joint written statement contested the plaintiffs claim. It was pleaded that plaintiff was devoid of cause of action; that the suit was barred by time; that plaintiff was estopped to sue the defendants; that the suit was barred as res judicata and; that defendants had improved the suit land and in case of decree they were entitled to compensation therefor. On merits, the averments in the plaint were denied. It was alleged that the land in suit had not been mortgaged to the defendants but had in fact been sold to them. The mutation of mortgage, according to them, had been fraudulently attested. The pleadings of the parties thus raised were reduced into the following issues:-
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit is within time?
(3) Whether plaintiff is estopped to bring the present suit?
(4) Whether the suit is hit by the principle of res judicata?
(5) Whether the defendants have made improvements over the suit land, if so, to what extent and to what effect?.
(6) Whether the plaintiff is entitled to the decree for possession as prayed for?
(7) Relief.
3. The learned trial Judge found issues Nos.1 and 6 against the plaintiff and so were issues Nos.3 and 4. On issue No.2 it was, however, held that the suit was within time. Issue No.5 was held against the defendants. As a result of findings on issues Nos.1 and 6, the suit was dismissed on 6-6-1988.
Feeling aggrieved, Mst. Amirzadgai, plaintiff, filed an appeal which was accepted by the learned Additional District Judge, on 18-6-1989, who, while affirming the findings of the trial Judge that relationship of mortgagor and mortgagees did not exist between the parties, outrightly decreed the suit for possession of the land under what he described "the inherent powers of the Court". It would be worthwhile to reproduce hereunder the concluding part of the impugned appellate judgment:- "This decree has been passed to avoid further litigation between the parties, for the matter of possession and their rights in the suit property have been determined by giving full opportunities to the parties to produce evidence for and against above proposition. The matter of improvements has also been decided against the defendants and as there is no appeal neither any evidence with regard to improvements, therefore, the findings of the learned lower Court are confirmed."
4. The perusal of the record would reveal that it came to surface in evidence that the suit land belonged to Qudrat All who, by mutation No.3668 attested on 22-12-1949, had mortgaged it to Baharuddin, predecessor-in-interest of defendants Nos.1 to 5. It appears that Qudrat Ali, by virtue of mutation No.4067 dated 13-12-1953 redeemed this land from Baharuddin and then sold it to the latter the same day by mutation No.4068. It was perhaps on this premise that defendants Nos.1 to 5 have denied the existence of relationship of mortgagor and mortgagees between the parties and also asserted their title to the land. In any case, the sale by Qudrat Ali to Baharuddin was successfully pre-empted by Mst. Amirzadgai and Mst. Bakhtawara. It may further be noticed that it is not pleadings of the parties but from the evidence in the witness-box it transpired that in pursuance of partition between the plaintiff-petitioners on the one hand and defendant- respondent No.1 on the other hand the land in dispute had fallen to the share of the former. In the entries of the Revenue Record, however, the defendants-respondents Nos.1 to 5 are recorded in the column of rent somewhere `Bila-Lagan Bawajah-e-Bay" while in others as "Bila-Lagan Bawajah-e- Rehan and Hissadari.' The observation of the learned Appellate Court that "the defendants- respondents Nos.1 to 5 have also not disputed the claim of the plaintiff for possession on the basis of being an owner", is not supported from the record.
5. First of all, I would address myself to the validity of the possessory relief granted by the learned Appellate Court on the consideration of the evidence adduced by the parties without regard being had to the pleadings of the parties. I am aware of the broad proposition that a Court is empowered to grant all such reliefs as the justice of the case may demand. In Muhammad Yaqoob v.Muhammad lshaque 1980 CLC 2056 Zafar Hussain Mirza, J., as his Lordship then was, while propounding the proposition circumscribed this power of the Court by certain considerations which have been highlighted in the following observations: "The general rule is that no relief can be granted upon facts and documents not disclosed in this pleadings nor dealt with by the issues or evidence in the case and which the other side was not called upon or had no opportunity to meet. It has also been held that where the plaintiff asks for a particular relief on a specific ground, he cannot be granted the same relief on a different ground which is not at all disclosed in the plaint. The other limitation on the power of the Court in this behalf is that altered relief can be granted on other grounds only if such other grounds are not inconsistent with the case of the plaintiff as set out in his pleadings and would not lead to determination of the issues which would embarrass the defendant. Clearly, therefore, it is not open to the Court to grant relief to the plaintiff on a different cause of action and on a plea for which there is no foundation in the pleadings. In Shiramani Guradwara v. Prem Das AIR 1933 Lah. 25 the plaintiff had sued on the basis of ownership and possession and no claim for title on adverse possession was pleaded. The Court refused to grant relief on the basis of adverse possession as the defendants had no opportunity of meeting this claim."
6. Applying the aforesaid principles to the facts of this case it appears to me that the plaintiff- appellant is not entitled to decree in the manner it has been passed. In the first place the learned Additional District Judge had reversed the findings of the learned trial Judge. Secondly the learned trial Judge held that the plaintiff-appellant was entitled to the possessory relief not on the ground of redemption of the mortgage but on the evidence that had emerged during the trial. Such a case was wholly inconsistent with the pleadings of the parties particularly those urged in the plaint and as further held in the case of Muhammad Yaqoob cited above, would amount to setting up a new case which will result in depriving the defendants-petitioners herein of opportunity of meeting the plea of existence of a partial sirccess of the plaintiff-respondent's suit for possession by pre- emption as also of Mst. Bakhtawara petitioner No.1; and subsequent partition as a result of which the suit land fell to the share of the plaintiff-respondent. It is possible to conceive of various pleas in defence of these assertions if they are ever raised in the plaint. I, therefore, not only disapprove the manner in which the learned Additional District Judge has proceeded to upset the findings of the trial Judge and granted the possessory relief "in exercise of his inherent powers" but I am constrained to set aside these findings. Faced with this situation, the learned counsel for the petitioners moved an application under Order VI, rule 17, C.P.C. For amendment of the plaint "so as to file suit in proper form with the addition of alternative relief of possession of entire or part of the suit land and also for correction of entries of Jamabandis from the year 1961-62 to 1978-79 and for omission of the entries showing the mortgage of the suit land." This application has been strenuously resisted by defendants-respondents.
7. The learned counsel for the petitioners contended that the amendment which has been sought would not alter the nature of the suit and that it was only the form of suit that would be changed, in that, the relief claimed would be for possessory relief with regard to the land in suit in its entirety or partially and also for correction of the entries of the Revenue Record from the Jamabandis for the period from 1925-26 to 1969-1970 and for omission of the entries therein qua the subsistence of mortgage thereof. It was next contended that amendments of pleadings had even been allowed by the august Supreme Court. In this regard he relied on: Keramat Ali and another v. Muhammad Yunus Ali and another PLD 1963 SC 191, Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106, Messrs East-End Exports v. The Chief Controller of Imports and Exports and another PLD 1965 SC 605, Lahore Improvement Trust v. The Custodian, Evacuee Property and others PLD 1971 SC 811, Mst.Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Ghulam Hussain v.
Zahoor Din and others PLD 1980 SC 146.
8. As against this, the learned counsel for the respondents argued that notwithstanding a preliminary objection raised in the written statement, the petitioners had ignored to seek amendment. It was further contended that the application for amendment having been made at a very belated stage should be disallowed.
9. The case law cited at the bar by the learned counsel for the petitioners has been fully discussed in the latest judgment of the Supreme Court in the case of Mst.Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345. 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 respondent 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.
10. The facts of the case in hand as is evident from the above narration, are identical with the case of Mst.Ghulam Bibi. The two objections raised in that case too that the suit was not maintainable in the present form and the application for amendment had been moved at a belated stage were repelled by the august Supreme Court. Respectfully following the principles enunciated in the case of Mst. Ghulam Bibi by the 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 bound 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.
11. In the present case, as stated in the application for amendment, the facts on which the plaintiffs-petitioners relied when filing the plaint would not undergo any substantial change except for technical variations and changes. The denial of relationship of mortgagor and mortgagees raised by the defendants and the averments in the pleadings regarding possession etc. Would remain the same.
12. In the light of the above discussion, this petition in revision is allowed and the impugned judgment is set aside. The application made by the petitioners for amendment of their plaint on 27-3-1991 is allowed subject to payment of Rs.500 as costs of amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendants shall also, if they so request, be allowed a proper opportunity to amend their written statement. The office is directed to immediately remit the record of the case to the Court concerned.