1. ' By a short order dated the 8th March 1992 I had allowed the plaintiffs application (CMA. 1628/91) under Order 6, Rule 17, C.P.C. For amendment of the plaint. The following are the reasons for that order: ' The plaintiffs claim in this suit arises, briefly stated, in the following circumstances. A company called Rahmania Fauji Sugar Mills Ltd. Was promoted by defendant in collaboration with, and with financial assistance from the Directorate, Welfare and Rehabilitations, General Headquarters, Pakistan Army. By M.L.R.No, 103, the company was dissolved on the 31st December, 1971 and its rights, liabilities, etc., were transferred to Fauji Foundation. In pursuance of para. 2 of M.L.R. 103, the President and Chief Martial Law Administrator issued Order No, 22 of 1971 thereby providing, inter alia, that Fauji Foundation shall be the sole owner of the company and shall pay compensation to shareholdeRs, The Order further provided that nothing contained therein shall preclude Fauji Foundation from taking action for recovery of moneys of the company misapplied, lost or misappropriated against any director, managing agent or officer of the company responsible for such misapplication, loss or misappropriation.
2. ' It is the case of the plaintiff that the defendant, while purchasing plant and machinery for the company from suppliers in Glasgow (U.K.) received from them, by way of commission, a sum of pound 200,000 and further sums of pound 26,665 and pound 25,000 in reimbursement of the sums paid by the company on account of stamp duties and demurrage; and that the defendant is liable to pay to the plaintiff the said sums of money.
3. ' It is .Also the case of the plaintiff that out of the aforesaid sums of money received by the defendant from the foreign suppliers, he repatriated a sum of pound 1,70,000 in pursuance of M.L.R.
4. No, 104 and that the rupee equivalent and that amount, together with proceeds of bonus vouchers thereon, was deposited with State Bank of Pakistan in pursuance of the Foreign Exchange (Prevention of Payments) Ordinance, 1972. The Ordinance, by section 2(2) provided that any person to whom any money was payable by the person repatriating the amount of Foreign Exchange, may apply to the Federal Government for payment of such money. The plaintiff applied to the Federal Government for payment of pound 1,70,000 and its claim was pending when the present suit was filed. The plaintiff had however, expressly reserved the right to file a separate suit for recovery of pound 1,70,000 "should it be considered necessary at any stage hereafter".
5. ' It appears that the defendant filed Constitution Petition No, 780 of 1973 in this Court and thereafter an appeal before the Supreme Court challenging the action of State Bank of Pakistan with respect to the aforesaid sums of pound 1,70,000; and, as a result of interim orders passed in those proceedings, the claim of the plaintiff in regard to that sum remained pending ; and, ultimately, the Supreme Court has declared the Foreign Exchange (Prevention of Payments) Act, 1972 (which had repealed and re-enacted the Ordinance of 1972) invalid with the result that the plaintiff's claim which was pending before the Government became infructuous.
6. ' It is in these circumstances, that the plaintiff has made this application for amendment for the purpose of claiming the rupees equivalent of pound 1,70,000 in addition to the money already claimed in the suit.
7. ' Mr. Sayyed A. Shaikh, the learned counsel for the plaintiff, submitted that, on the principle enunciated in Keramat Ali and another v. Muhammad Younus Haji and others (PLD 1963 SC 191), Bashir Ahmed Khan v. Qaiser Ali Khan (PLD 1973 SC 507) and Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345) the plaintiff should be allowed to amend the plaint.
8. ' Mr. Muhammad Ali Sayeed, the learned counsel for the defendant, opposed the application on the ground that it was delayed and section 14 of the Limitation Act is not applicable to the case; that the cause of action for the claim sought to be added by amendment is different from the cause of action in the suit inasmuch as the plaintiffs claim under the Ordinance of 1972 was to the "repatriated" money whereas the claim in the suit is a simple claim for money ; and that the decisions cited by Mr. Shaikh are not applicable to this case because in those cases amendments were allowed in special circumstances and no special circumstances exist in this case.
9. ' Mr Shaikh submitted, in reply, that he is not relying on section 14 of the Limitation Act and that, as held in Mst. Nawab Jehan Begum v. Dr. Imdad Ali (1989 SCM R 1798), amendment can be allowed in the circumstance of a case even after a long delay of two decades.
10. ' In Keramat Ali's case the plaintiff had filed a suit for declaration without claiming relief by way of recovery of possession. The objection of the defendant with regard to the maintainability of the suit under section 42 of the Specific Relief Act was rejected by trial Court. The appeal against the judgment of the trial Court was dismissed. The High Court in IInd Appeal reversed the finding of the lower Courts and from the judgment of the High Court appeal was filed before the Supreme Court.
11. The plaintiff sought permission at that stage to amend the plaint and to seek the relief of possession. The claim of the plaintiff to possession had by then become barred by limitation. It was observed by the Supreme Court as follows: "The Judicial Committees 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 Muhammad Zahoor Ali Khan v. Mst. Thankooranee Rutt Koer (11 MIA 1468) 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 the 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 by inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Muhammad Zahoor Ali Khan v. Mst Thakooranee Rutta Koer."
12. ' On the facts of that case it was held that the amendment prayed for did not seek to alter the nature of the suit but only to bring in an additional claim which the appellants should have asked for in the suit. It was further observed that ever since the petitioner had auction purchased the properties in 1973 they had consistently asserted their own right in those properties and it would be a great hardship to defeat that right merely on this technical ground. The amendment sought for was therefore allowed.
13. ' In Bashir Ahmed Khan's case the plaintiff had instituted a suit for declaration that they were the exclusive owners of the property in question. Preliminary objections raised by the defendant as to the maintainability of the suit were rejected by the trial Court and a revision petition filed by the defendant was dismissed by the High Court. The defendant thereupon filed a Petition for Leave to Appeal before the Supreme Court and in that petition the plaintiff moved an application for permission to amend the plaint or, in the alternative, to vacate the stay order to enable the trial Court to decide the application for amendment of the plaint. The Supreme Court suspended the stay order to enable the plaintiff to move the trial Court for permission to amend the plaint.
14. Accordingly the plaintiff made an application to the trial Court for amendment of the plaint, which was dismissed by the trial Court but was allowed by the High Court in revision. The defendant filed another petition for leave to appeal before the Supreme Court to challenge the order of the High Court allowing the amendment. It was held by the Supreme Court that the amendments which were allowed by the High Court were really in the nature of consequential reliefs arising from the main cause of action on which the original suit was based and it was observed as follows:-- "The twin questions of delay and limitation may now be considered together. The preliminary objection raised by the petitioner had been overruled by the trial Court, and this view was upheld in revision by the High Court. However, when this Court granted special leave to appeal in this behalf (in C.P.S.L.A. No, 146 of 1967) on the 29th of June 1967, the plaintiffs-respondents felt compelled to amend the plaint so as to remove the objections concerned. In these circumstances, the plaintiffs cannot be blamed for the delay that occurred in applying for the amendment. Almost all the time was spent in getting a decision from the Courts at various levels on the question whether the amendments were indeed necessary or not."
15. ' It was held that in the special circumstances, the amendments could be allowed even if a fresh suit involving these reliefs would have been barred by the time on he date of the application for amendment.
16. ' In the case of Mst. Ghulam Bibi v. Sarsa Khan a suit had been filed for declaration that the plaintiff was the owner in possession of the land and for injunction to restrain the defendants from interfering with his possession. The objection of the defendant to the maintainability of the suit was rejected by the trial Court but the Appellate Court held that as the deed of exchange upon which the plaintiff had based his claim was not registered, no title was conveyed to the plaintiff and he should therefore have filed a suit for specific performance of the agreement and not a declaratory suit. In IInd appeal an application to amend the plaint was filed but was rejected on the ground that it was belated. It was held by the Supreme Court that the delay in making an application for amendment is no ground for rejecting it and that the power to allow amendment should be exercised liberally; and it was observed as follows:-- ' On question of amendment of the pleadings, this Court, as would be presently shown, has in recent years adopted a liberal view, as compared to the strict view of the matter in some old cases. Karamat Ali and another v. Muhammad Younus Haji and others (PLD 1963 SC 191) in reality is the basic judgment on this issue. On the wider question relating to the purpose of the rules regarding pleadings a very important observation has been made in another recent judgment of the Court Dineo Manekhi Chinoy and others v. Muhammad Matin (PLD 1984 SC 1) to the effect that a strict view "On the technical plane, of pleadings without regard to the substance of the matter which results in defeating the ends of justice and leads to something genuine litigation, is not to be taken". It needs to be mentioned that the expiry of limitation by itself when considering the question of amendment was not treated as a bar if otherwise it is found to be necessary for the purpose mentioned in Order 6 Rule 17 by the Privy Council..."
17. ' It was observed in the case of Ghulam Bibi v. Sarsa Khan that if a genuine amendment which is permissible and should otherwise be liberally allowed in view of the principles highlighted therein, is denied the provisions contained in Order II, Rule 2 would create enormous difficulties for the applicant. Reference in that connection was made to the case of National Shipping Corporation v.
18. M/s. A.R. Muhammad Siddiq and another (1974 SCM R 131).
19. ' The argument advanced by Mr. Muhammad Ali Sayeed on the basis of non-availability of the provisions in section 14 of the Limitation Act is obviously not to the point. With regard to the cause of action it is clear that no new cause of action is sought to be set up by the plaintiff by the amendment which is sought. In fact the claim to the amount of pound 1,70,000 arises from the cause of action which has already been pleaded in the suit. Mr. Muhammad Ali Sayeed contended that the cause of action is different because the claim in the suit is a simple claim for money whereas the claim of the plaintiff before the Federal Government was to the amount which was "repatriated" by the defendant. The distinction may appear to be superficially valid but in substance the claim of the plaintiff is a claim for money and that claim arises from the same cause of action, namely, that the defendant received certain amounts of money from the foreign suppliers and was liable to pay those amounts to the plaintiffs who are entitled to it. It may be observed that the amount repatriated by the defendant was converted into rupee and was deposited with the State Bank of Pakistan. The payment of that amount was prohibited by the Government and under section 2(2) of the Ordinance of 1972 (re-enacted by the Act of 1972) any person to whom any amount of money was payable by the person repatriating the amount of foreign exchange or who had against such person any claim the value of which could be expressed in terms of money could apply to the Federal Government for the, payment of the amount so payable or the amount representing the value of such claim. It would appear that the claim under section 2(2) was claim for money and not to the amount "repatriated" by the defendant.
20. ' Mr. Muhammad Ali Sayced then submitted that in the cases cited by Mr. Shaikh, Supreme Court allowed amendments in exercise of its power to do complete justice. The implication of the submission was that power was only available to the Supreme Court. The answer to that argument is provided by the following passage from the case of Ghulam Bibi v. Sarsa Khan: "In few cases, the observation regarding power of this Court to do complete justice, no doubt, has been made but that alone is not the rationale behind that liberal rule of construction in so far as Order 6, Rule 17 is concerned. It cannot be said that if the Supreme Court in exercise of its power to do complete justice considers the amendment to the pleadings to be liberally allowed, it would apply different principle of justice for other Courts when interpreting Order 6, Rule 17. In reality the said rule is by itself couched in such language as to advance the object of complete justice." (See page 356)
21. ' In the present case it is clear that the plaintiff has been asserting its claim to recover the money sought to be recovered by the amendment since before the suit was filed and that the claim for that amount was not included in the plaint only because by Ordinance 1972 the plaintiff was entitled to prefer a claim before Federal Government and had in fact preferred such a claim. It also cannot be disputed that had the plaintiff's claim before the Federal Government not become infructuous in the circumstances outlined above it may not have been necessary to apply for amendment of the plaint. The plaintiffs have applied for amendment within a reasonable time after their claim before the Federal Government became infructuous. In these circumstances, I am of the opinion that special circumstances exist justifying grant of amendment notwithstanding the lapse of time between the filing of this suit and the filing of the amendment application and the fact that a fresh suit by the plaintiff to recover the money mentioned in the application would be barred by limitation.