1. ' This petition, under Article 199 of the Constitution, is against a decision of learned District Judge of Mianwali dated 14-1-1982, allowing amendment to the plaint in the Civil suit filed by Malk Sher to plead acquisition of title on the basis of hostile and adverse- possession on the landin-dispute.
2. ' On 30-7-1979, Malik Sher brought a Civil suit for declaration of title to a piece of land and confirmation of his possession on it. As a consequential relief, perpetual injunction was sought against Muhammad Aslam defendant for preventing him from causing interference with his actual possession on the land-in-dispute.
3. ' Defendant submitted his written statement and pleaded that he had purchased the land-in- dispute from Malik Abdul Karim and Atta Muhammad through a registered sale-deed on 30-8- 1950 and was its owner. Defendant also applied for rejecting the plaint under Order VII, rule 11, Civil Procedure Code. On 15-9-1979, the trial Court rejected the plaint with costs assessed at Rs,50.
4. Plaintiff filed an appeal. It was allowed and the suit was remand for its decision on merits. On remand, the trial Court framed issues arising for decision from the pleadings. In course of trial, plaintiff filed a misc. Application for amendment to the plaint to plead in the alternative adverse possession and consequent acquisition of prescriptive title. By order dated 14-11-1981 of the trial Court, relief of amendment was denied on the ground that the plea of adverse possession was contradictory to and destructive of the plea of ownership of the land-in-dispute already taken and the proposed amendment would also alter complexion of the suit. Against the dismissal of the application seeking amendment, plaintiff filed a petition for revision before the District Judge, Mianwali. It was allowed on 14-1-1982 by permitting the proposed amendment conditional upon payment of Rs,100 as costs. This order has occasioned a grievance to the defendant in the suit.
5. Hence this petition was filed by him in this Court. It was admitted to hearing on 22-10-1983.
6. Upon hearing learned counsel for rival parties and examination of the impugned order, it could Not be described either as without jurisdiction or without lawful authority. Taking alternative plea of adverse possession was neither contradictory to Nor destructive of the plea of ownership already taken in the plaint. It was Not inconsistent either. See for example Fazal Rehman v. Rahim Gul and others PLD 1965 (W.P) Peshawar 223. The truth or otherwise of the plea was also Not germane to a final examination at the time of considering the propriety of allowing amendment to the pleading.
7. Reference can be had to the case of Syed Akhlaque Hussain and an other v. Water and Power Development Authority, Lahore 1977 SCM R 284. Powers to allow amendment to the pleadings under Order VI, rule 17, C.P.C. Are wide and expansive. Exercise of power rests in the discretion of the Court.
8. If the proposed amendment is essential for determining the real question in controversy between the parties, there was No bar for allowing it. All rules of procedure are intended to aid and assist the main cause of justice. Power to allow amendment is also a step in that direction. On the powers of the Court to allow amendment, there is an instructive and self-illuminating judgment of the Supreme Court in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court
345. Judged on the guidelines provided by the above judgment of the Supreme Court, impugned decision could Not be termed faulty. There is Not much doubt that refusal to allow amendment was clearly a `case decided' and was revisable. There are number of decided cases to support this legal statement but since No contrary view was cited, 1 need Not refer to all of them. Reference shall suffice to the case in Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 Supreme Court 507, which held that rejecting the application for amendment amounted to a 'case decided' and was amenable to correction in revision. In this view, jurisdiction of the revisional Court to interfere was beyond dispute. Against an order passed in revision by the District Court, a further revision to this Court is clearly prohibited in section 115 (3) of Civil Procedure Code. That is why, Civil Revision No, 1693/1982, filed in this Court was allowed to be dismissed as withdrawn by reserving an option to file the Constitutional petition. In absence of a jurisdictional defect in the order, amended section 115, C.P.C. Manifested a clear intention that the order passed in revision shall be treated as and held final. Constitutional remedy is both extraordinary and exceptional and ordinarily should Not be invoked on a mere difference of opinion on a point of law or fact. By the proposed amenmdent, neither the complexion of the Civil Suit was changed Nor the cause of action displaced. Relief claimed in the suit remained the same. Only an additional plea was sought to be added to support the claim of ownership. As a last string to the bow, Mr. Nawab-ud-Din, Advocate, learned counsel for petitioner relied upon the decision in Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063 (Shariat Appellate Bench) to contend that the plea of adverse possession was un-Islamic and could Not be allowed to be taken. No doubt, the proNouncement of the Shariat Appellate Bench favours his contention on repugnancy of section 28 of Limitation Act, 1908 to Injunctions of Islam, in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possesssion of the property".
9. Declaration of repugnancy of the statutory provision to Islamic Injunctions shall take effect from 31st of August 1991 as the date given in the judgment of the Court and it is on that date that the repugnant provision shall cease to take effect. Learned counsel for petitioner pressed hard upon me to apply rule laid down by the Shariat Appellate Bench of the Supreme Court for holding that the plea of adverse possession was Not available to the plaintiff-respondent. As at present advised, I do Not propose to enter into the complex question of retrospectivity of the law laid down by the Shariat Appellate Bench and its effect on cases already pending or decided before it took effect. On the date of the inpugned decision, which the Court is presently examining, No bar for acquisition of ownership rights on the basis of adverse possession existed in law. In view of the aforesaid, No valid ground existed for interference with the revisional order allowing amendment to the plaint for pleading adverse possession. Writ petition is, accordingly, dismissed with No order as to its costs.
10. ' As the plaint in the suit was presented to the primary Court on 30-7-1979 and embraced a dispute about a small piece of land, decision of which has already suffered eNormous delay, the trial Court is called upon to expedite and finalize the proceedings in the civil suit in as short a period as was possible for it in the circumstances.