' Briefly stated facts of 'the case, out of which this Civil Revision has arisen, are that Noor Muhammad plaintiff respondent, alleging himself to be a co-owner of a house constructed on plot No,437 Jinnah Colony, Faisalabad which was in occupation of WAPDA. On rent as a tenant, filed a suit against Abdul Majid, for rendition of accounts, on the ground that the plaintiff and Abdul Majid purchased the plot in question jointly whereon double-storey house was constructed with their joint funds and the deceased have been receiving the rent of the house, on his own behalf and as well as on behalf of the plaintiff, who has not rendered the accounts and has not since paid the share of rent to the plaintiff, and, hence claimed passing of a decree for rendition of account in his favour. This suit has been contested by the defendant on various grounds including the one that the suit does not lie in the present form.
2. On the basis of the pleadings of the parties, learned trial Court framed the following issues:--
(1) Is the suit bad for misjoinder of the parties?
(2) Whether the plaintiff has no cause of action?
(3) Is the plaint insufficiently stamped?
(4) Is the suit barred by time?
(5) Does not the suit lie in the present form?
(6) Is the plaintiff entitled to a decree for the rendition of account in dispute?
(7) Who is the accounting party?
(8) Relief. and vide judgment and decree dated 23-12-1975 passed a preliminary decree for rendition of accounts in favour of the plaintiff respondent and appointed a local commissioner to inspect the accounts. Aggrieved by the said judgment and decree, Abdul Majid defendant filed an appeal on 7-1-1976 before the District Court of Faisalabad. During the pendency of the appeal, Abdul Majid appellant died and Sh. Abdul Rahim, now deceased whose legal representatives have been brought on the record of this case as petitioners was impleaded as his legal representative.
Respondents Nos,2 to 9 were also impleaded as legal representatives of Abdul Majid deceased.
Learned Additional District Judge vide judgment and decree dated 18-3-1981 accepted the appeal and further held that the suit is not maintainable in its present form, therefore, he directed that the plaintiff should amend the plaint suitably, incorporating therein specific relief for the recovery of specified amount payable to him and remanded the suit under Order 41, rule 23-A, C.P.C. To the learned trial Court. Aggrieved by this remand order, Sh. Abdul Rahim, legal representative of Abdul Majid deceased who was the appellant before the lower Court filed the present revision petition and has challenged the remand order passed by the learned first appellate Court. Other legal representatives of the deceased did not file any appeal and have been impleaded as respondents Nos,2 to 9. Noor Muhammad plaintiff also challenged the remand order in Civil Revision No, 1723 of 1983 which was originally filed as FAO No,52 of 1981 and which was subsequently converted into the Civil Revision. This Civil Revision has been withdrawn by the learned counsel for the petitioner today and the same has been dismissed as having been withdrawn.
3. Abdul Hamid Akhtar, Advocate has appeared on behalf of the legal representatives of Sh. Abdul Rahim deceased petitioner. Ch. Hafiz Ahmad Advocate has appeared on behalf of respondent No,1 whereas MRs, Shaista Qaiser, Advocate has appeared on behalf of the respondent Abdul Salam respondent No,2. None has appeared on behalf of other respondents.
4. Sh. Abdul Hamid Akhtar, learned counsel for the petitioner has raised the following contentions:
(1) That without there being an application seeking amendment of the plaint, the learned first appellate Court had no jurisdiction to allow the plaintiff respondent to amend the plaint. In support of this proposition, learned counsel has relied upon case of Shuja-ul-Mulk v. Firm Abdul Ghafoor- Abdul Qadim (PLD 1%4 W.P. Peshawar 110, Karim Dad v. Arif Ali and another (PLD 1978 Lahore 679) and Irfan Iqbal and 2 others v. Ch. Muhammad Hanif and 4 others (PLD 1985 Lahore 525).
(2) That the learned first appellate Court had no jurisdiction to allow the amendment of the plaint in general terms, particularly when in the case in hand, the directed amendment will change the whole complexion of the suit. Learned counsel has relied upon cases of Matwali Khan v. Shah Zaman (PLD 1965 Azad J&K 26), Muhammad Sharif v. Kh. Habib Joo (PLD 1972 Azad J & K 22, Brij Mohan v. N.V. Vakharia and others (AIR 1965 Rajasthan 172).
(3) That at the time when the plaint was allowed to be amended, claim of the plaintiff regarding the recovery of the ascertained amount had become barred by time and, hence, a valuable right had accrued to the petitioner, therefore, amendment could not have been allowed at the belated stage particularly when the plaintiff has been insisting upon that the form of the suit was correct and he had not made any application or move to seek amendment of the plaint.
5. As against the above arguments addressed by the learned counsel for the petitioner Ch. Hafeez Ahmad, Advocate, for the respondent has argued that the learned Additional District Judge while deciding the appeal filed by the petitioner, had the authority to direct the amendment of the plaint, after the court had held that the suit is not maintainable in its present form and the objection with regard to the form of the suit raised by the petitioner was upheld. According to the learned counsel for the respondents no formal application was necessary to direct amendment in the plaint and, therefore, the impugned remand order is quite lawful and valid and further that the directed amendment will not in any manner change the cause of action or complexion of the suit inasmuch as the relief in the suit will remain the same i.e the recovery of the rent to the extent of share of the respondent, which has been received by the deceased defendants and, therefor, the argument of the learned counsel for the petitioner in this behalf is misconceived and that it is in the interest of justice to allow the plaintiff to amend the plaint after it has been held that the form of the suit is not correct and, therefore, merely because the suit for recovery had become barred by time at the time of passing of the remand order, it will not be a bar to allow the plaint to be amended rather it will be a favourable circumstance to allow the amendment and, therefore, a fair and just order passed in aid of justice cannot be interfered with in exercise of the revisional jurisdiction of this Court.
6. MRs, Shaista Qaisar, learned counsel for Abdul Salam respondent No,2 has also opposed the petition.
7. I have considered the arguments addressed by the learned counsel for the parties and have perused the record. Originally the respondent No,1 filed a suit seeking rendition of accounts on the basis of his title in the house in question which was rented to WAPDA and rent whereof had been recovered by Abdul Majid deceased defendant who is predecessor-in-interest of the present petitioneRs, An objection has been raised by the defendant with regard to the form of the suit and it is contended in the written statement that only a suit for recovery of an ascertained amount is competent. On the basis of these averments contained in the pleadings of the parties, an issue with regard to the form of the suit has been framed which was decided by the learned trial Court against the defendant who is now being represented by the petitioneRs, This finding has been set aside by the learned Additional District Judge while deciding the appeal filed by the deceased defendant. One course open to the learned Additional District Judge was to have dismissed the suit as not being maintainable in its present form and the other was to have allowed the plaintiff to amend the plaint so that its form is corrected. Ratio and trend of the law declared by the Supreme Court of Pakistan in various judgments is that a suit should not be dismissed merely on the basis of technicalities and formal defects should be allowed to be removed by the parties. In case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) at page No,766, it has been held as under:-- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it."
' In case of Karamat Ali and others v. Muhammad Younas Haji and others (PLD 1963 SC 191) at page 201 it his been held as under:- "The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such consideration. Vide: Md. Zahoor Ali Khan v. Mst.
Thakooranee Rutta Koer 11 MIA 468 and Charan Das and others v. Amir Khan and others AIR 1921 PC
50. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power no doubt this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to rc I use such a relief this Court will not hesitate to do what the Judicial ( ommittee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranrc Rutta Koer.
' The present, in our view is a case which comes with in this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Even since 1937, when they auction-purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for Khas possession and to pay the additional court-fee as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent.
' For this purpose we remand the suit to the trial Court for enabling the appellants to make the necessary amendments to the plaint and thereeafter for disposal of the suit in accordance with law and in the light of the observations made above. If the respondents wish to put in any additional written statement and to contest the suit on this question of possession alone, they will also be at liberty to apply to the trial Court for permission to do so. Additional evidence on this issue alone may also be led, if the respondents seek to challenge the right of the appellants to claim possession even on the date of the institution of the suit. "
' In case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), it has been held as under: "After hearing both the learned counsel for some time we agree with the observation made by the learned Judge in the. High Court that `generally delay alone in applying for amendment or expiry of period of limitation or increase in court-fee and change of jurisdiction is not a ground for refusing amendment in the plaint' the judgments cited by the learned counsel for the appellants depending upon the circumstances of each of them support the said view. However, with respect we have not been able to agree with the learned Judge that notwithstanding the legal position, "in the circumstances of the present case there is no merit in the prayer to allow the amendment for the reason that the appellants were negligent or that the application for amendment was not made bona fide."
' No doubt an objection was raised from the respondent side that the suit was not maintainable in the present form and an issue was framed in that behalf. But it was ignored that the said issue was decided by the learned trial Court in favour of the appellants on the finding that the so-called agreement to exchange was, in so far as its contents disclose in reality a contract of exchange.
Therefore, the plaintiffs (the present appellants) could not be held to have acted in a ma la fide manner in not seeking the amendment before the trial Court. In the same context the learned counsel for the appellants is right in pointing out that it was the respondent-side which filed the appeal before the District Court. If the appellants would have filed before the trial Court on this issue and they had filed the appeal before the District Court a question could have arisen as to why they did not at least ask for the amendment of the plaint as an alternative course of action. But here it was a different situation. Be that as it may, the learned Judge himself observed and rightly so that the delay alone in applying for the amendment cannot be determining factor for deciding an application under Order VI, rule 17, C.P.C. The use of the expression at any stage of the proceedings' in rule 17 is not without significance. The word proceedings has been interpreted by this Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose as including the appellate stage and that too up to the Supreme Court.
' The foregoing interpretation is also in accord with the mandatory language used in rule 17 to the effect that 'all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy....'. Therefore, once the Court decides that the amendment is necessary for the said prupose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment."
' Order VI rule 17, C.P.C. Which will apply even to the appellate Court is worded in very wide terms as is clear from the reproduction of the same as follows: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
8. A perusal of the provisions of Order VI, rule 17 read with the principles enunciated by the Supreme Court of Pakistan regarding the allowing of amendment it becomes crystal clear that the Court who is seized of the case, may be the appellate Court, has jurisdiction to allow or direct a party to amend the pleadings and in this behalf it is not necessary that a written application should be filed by the litigant. Bar of limitation and delay is not a ground to refuse amendment if the same is necessary for the just decision of the case. Judgments cited at the bar by the learned counsel for the petitioner are applicable only to the facts of the cases which have been decided therein. These judgments do not lay down a universal rule to the effect that under no circumstances a Court has jurisdiction to direct an amendment of pleadings unless and until an application is made by a party to the suit, seeking permission to amend the pleadings, Therefore, it cannot be said that the said judgments will apply to the facts and circumstances of the case in hand. Even otherwise contrary view of the Supreme Court is quite clear on the point that on the basis of a formal defect in the suit, the dismissal thereof should not be ordered and the parties should be allowed to suitably amend the pleadings even if they do not ask for it as has been clearly held in case of "Ahmad Din" referred to supra. Consequently, I hold that the learned first appellate Court had the jurisdiction to direct the amendment of the plaint in the facts and circumstances of this case while setting aside the findings of the learned lower Court on the issue of form of the suit. Argument of the learned counsel for the petitioner to the effect that the proposed amendment changes the whole complexion of the suit is also misconceived. The suit is based on title and refusal of the defendant to pay rent to the extent of plaintiffs share which has been received by him. In a recovery suit also cause of action will remain to be the same and it is only prayer which shall have to be substituted wherein instead of asking for a decree for rendition of account a prayer will be made for payments of the specific amount of money. There will be no other substantial change in the plaint. Consequently, it cannot be said that the complexion of the suit shall be changed if the plaint is amended by the plaintiff to substitute the prayer of payment of specific amount of money for rendition of accounts and some other minor changes are made in the plaint. Judgment reported as AIR 1965 Rajasthan 172 referred above, in my view does not lay down the correct law and at any rate being contrary to the judgments rendered by Supreme Court of Pakistan is inapplicable to the fact and circumstances of this case, hence, I do not follow the rule laid down therein. Arguments of the learned counsel on this score are repelled. Next argument of the learned counsel for the petitioner that the directed amendment should have been specific, has also no force inasmuch as the direction given by the learned appellate Court is quite specific and both the parties know as to which amendment is to be made in the plaint. Similarly argument of the learned counsel to the fact that at the time of passing of a remand order the suit for recovery of specific amount of money had become barred by time and, therefore, the amendment should not have been allowed, is also misconceived and is contrary to the law laid down in the cases of "Keramat and others" and "Mst. Ghulam Bibi and others", referred to supra.
' The remand order is quite just and fair and, hence, should not be interfered with in exercise of discretionary revisional jurisdiction of this Court in view of law laid down in case of Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore (PLD 1954 Lahore 575) wherein it has been held as under: "A perusal of these rulings would show that in several cases the lower Courts had passed orders without jurisdiction and in some cases they had erroneously decided questions relating to limitation, but the High Court refused to interfere in revision on the ground that substantial justice had been done between the parties. This relief is a substantial ground for not interfering on revision.
' This argument of the learned counsel for the petitioner that this Court is bound to interfere on the revision side in every case if it is of opinion that the order of the lower Court is wrong, is without any force."
' Resultantly, this civil revision has no force. The same is dismissed with costs.