IFTIKHAR MUHAMMAD CHAUDHRY, J.--This appeal is directed against order dated 9.9.1990 passed by learned single Judge of this court in Admiralty suit No. 2/87 whereby two separate applications being Civil Misc: No. 259/88 and 194/89 under Order VI, Rule 17 were allowed subject to all just exceptions.
Concise facts relevant for disposal of this appeal are that plaintiff filed suit for recovery of U.S. Dollars 3, 37, 560/96 = Pak. Rs. 66,07,316/80 with cost and interest against the defendants.
The suit was contested and written statement was filed by the appellants on 5.10.1987. The court framed issues for adjudication; the plaintiff produced evidence and got recorded statements of two witnesses.
2. On 16.4.1988 Civil Misc: No. 259/88 was filed under Order VI Rule 17. This application was followed by another Civil Misc: No. 194/89 on 11.3.1989. In C.M.No. 259/88 the plaintiff sought following amendments:-
1. After the title in the plaint the heading of the suit may be substituted as follows:- "Claim for 244, 707. l2 equal to Pak. Rs.81, 63, 429, 52 cost and interest".
2. That paragraph I6 of the plaint may be deleted and following new paragraphs No.16,17,18 and 19 may be added:- "16. That the cargo interest accordingly furnished security in the sum of U.S. Dollar 1.25 million with the Committee of Lloyd's pending determination of the salvage award by the Arbitrator in term of LOF 1980 and eventually settled the plaintiffs' claim amicably in the sum of U.S. Dollar 537, 500/-.
The dispute before the Arbitrator was therefore confined to the share of the ship for which the then registered owners of the defendant No.1 though endeavoured through their London Solicitors to negotiate for a reduced sum of security failed altogether to furnish the same. Accordingly the Lloyd'
Committee appointed Mr. A.P. Clarke, Queens Counsel as Sole Arbitrator who having issued notices of hearing to the then registered owners of the defendant No.1 vessel, proceeded to determine the plaintiffs salvage remuneration by evaluating the salvaged property namely the vessel and the cargo as follows:- "value of the salved ship mv Kaptain Yusuf Kalkavan 276, 715. 63 value of the salved cargo 436,036.76 Total: 712,752.39 "17. That the then registered owners though served with notice remained un-represented before the Arbitrator. M/s. Britten Bradshaw, the London Solicitors appointed by the defendants No.2 however on 10.11.1987 approached the plaintiffs Solicitors Messrs. Elborne Mitchell and requested information and documents and indicated the possibility of them being instructed to appear before the Arbitrator for protecting the interest of the defendants No.2 at the hearing fixed on 13th and 16th October, 1987, but eventually failed to make any appearance and the case was duly heard on the said dates."
"18. That the learned Sole Arbitrator thus having concluded the hearing made his award on the lst March, 1988 which was duly published by the Committee of Lloyd's London on 2.3.1988."
"19. That the learned Sole Arbitrator thus awarded to the plaintiffs as follows:- i) Proportionate salvage remuneration in 201,864.00 respect of the defendant No.1 vessel. ii) Interest from 25.11.1987 to 3.3.1988. 27, 645.69 iii) Cost incurred and taxed by the Arbitrator. 9, 474.48 iv)Further legal cost. 1,932.95 Arbitrator's fees. 3,090.00 Committee of Lloyd fees. 700.00 ________________________________ Total: 244,707.12 ________________________________
3. That the existing paragraphs 17, 18, 19 and 20 of the plaint may be renumbered as paragraphs 20, 21, 22 and 23 respectively.
4. That the existing paragraph 21 of the plaint may be deleted and the following new paragraphs as paragraphs 24 and 25 may be added:- "24. That the plaintiffs respectfully submit that the sums awarded by the learned Sole Arbitrator referred to in paragraph 19 above are in the circumstances of the case, proper reasonable and fair and the plaintiffs are even otherwise entitled to the said sums."
"25. That the defendant No.1 vessel is thus liable to be arrested and sold for recovery of the plaintiffs dues to the extent of the sum of 244, 707. l2 which is equal to Pak. Rs. 81, 63, 429.52 at the present rate of exchange of 1 = Rs. 33.36, with further interest on the principal sum at the rate of 10.75% per annum."
5. That the existing paragraph 23 may be deleted.
6. That the following new paragraphs may be added as paragraphs 26 and 27:- "26. That on 29.8.1987 this Hon'ble court was pleased to direct the defendants to furnish security in the sum of Rs. 4 million for securing the plaintiffs claim and directed them further to "Maintain detailed account concerning disposal of scrap and its sale consideration etc for placing it before this Hon'ble court if and when required."
"27. That the plaintiffs therefore respectfully submit that the defendants No.2 are in terms of the said order liable to account for the entire sale proceeds of the scrap of the defendant No.1 for satisfaction of the plaintiffs claim if and when decreed in excess of the said sum of Rs. 4 million for which bank guarantee has been furnished."
7. That the existing paragraphs 24 and 25 of. The plaint may be renumbered as paragraphs "28 and 29" respectively.
8. That the existing paragraph 26 may be renumbered as paragraph 30 and the figure Rs. 81, 63, 429.52 may be substituted for the figure Rs. 6, 607, 316.80.
9. That in the prayer clause (i) of the plaint the said sum of Rs. 81, 63, 429. 52 may be substituted for the existing figure Rs. 6,607, 316. 80 and the rate of interest may be substituted by "10.75% instead of 15%.
10. That at the foot of the plaint among the documents relied upon the following may be added:- "Lloyd's letter dated 2. 3. 1988, the Award dated 1.3.1988 together with the reasons given by the Arbitrator. The extract from the ship's registry, etc."
Whereas in C.M. No. 194/89 request was made for amendment in the plaint as under:-
1. After the proposed paragraph 20 the following two additional paragraphs 21 and 22 be added as follows:-- "21. That thus the defendant No.1 vessel was on 2.3.1987 sold by the Red Sea Ports Authority for Egyptian pound 400, 400 and after deducting therefrom Egyptian pound 97, 507. 67 being the port dues payable by the owners plus the cost of depositing, the said authority deposited the surplus in the sum of EGP 302, 289. 33, approximately equal to US Dollar 143073.53 in their hands in the Suez Court of First Instance.
22. That at the request of the plaintiffs the Suez Court of First Instance vide its order of Attachment Injunction No.22 of 1987 dated 8.6.1987 registered their claim provisionally in the sum of US Dollar 200, 000/- and is also seized of the following claims, which are pending adjudication and determination of priorities between them inter-se viz-a-viz the plaintiffs and the next hearing if fixed on 22.3.1989:--
(a) By Dominion International Services US Dollar 40972.03 Egyptian Agent of vessel.
(b) By the Master of the vessel. US Dollar 94500.00
(c) By the First Engineer US. Dollar 79500.00
(d) By a Sailor. US. Dollar 45650.00 and the plaintiffs do hereby undertake to bring on record the actual sum if any when eventually received from the said Suez Court of First Instance and make appropriate adjustment in their claim in the above suit.
2. That the proposed paragraphs 21 to 30 be accordingly renumbered as paragraphs 23 to 32."
3. The appellants vehmently opposed the request of respondent for seeking amendment in the plaint on the ground that complexion of the suit would be altogether changed because the request for deleting para I6, 21 and 23 as well as prayer clause from the original plaint has been sought to put up altogether a new case, as while filing suit for recovery of amount a lesser amount was claimed whereas in the amended plaint appellant has put up claim against the appellant for recovery in the sum of Pak.Rs.81, 63, 429.52 with cost and interest originally suit is based on statement of claim which is appended to plaint as Annexure-8, whereas now in entire substitution of this statement of claim respondent/plaintiff intends to replace the same with an arbitration award which has been determined to the tune of US Dollar 7.12,752.39 and under law during pendency of suit, Arbitration Award cannot be made basis for the claim. The plaintiff either to withdraw their suit and pursue remedy which is available to them Under Arbitration act or they should independently prove their claim on the basis of statement of claim which has already been placed on record. Similarly in the previous suit certain admissions have been made by the plaintiff/respondents and if those parts of placing are allowed to be deleted admission would also be withdrawn, therefore, on this point as well, request for amendment of plaint is unwarranted.
4. The learned Single Judge after considering documents of both the parties allowed amendment in plaint as sought for vide impugned order, Under these circumstances the instant Revision has been filed.
5. In support of appeal Mr. Tariq Hussain, learned counsel has argued that amendment sought in pleading are in violation of provisions of Order VI Rule 17 CPC. If amendment as requested for, is granted this would amount to allowing the plaintiff/respondents for putting up altogether a new case in the court. In the previous suit certain important admissions have been made particularly in paragraph No.16, 20 and 21 which are in favour of appellant and if those admissions are allowed to be deleted serious prejudice would be caused to appellants. The plaintiff/respondents are trying to raise their claim before court on basis of Arbitration Award delivered by Mr. A.P. Clarke Queens Counsel for Sole Arbitrator appointed by Lloyd Committee and respondents indirectly are attempting for making Arbitration Award as rule of the court by adopting procedure other than as laid down under Arbitration Act, Because suit is pending for consideration, therefore, no effect can be given to Arbitration Award and if application for amendment is allowed, the appellant would have no choice to defend the suit because this Honourable Court would decide the case on the basis of Arbitration Award. Any how, there is no bar for plaintiff/respondents to produce Arbitration Award in court to substantiate the claim, finally request was made that appeal may be accepted and application for amendment may be dismissed.
6. Whereas on the other hand Mr. Muhammad Naeem, Advocate for respondent/plaintiff argued that while allowing application for amendment no prejudice will be caused to appellants/defendants, the complexion of suit will not be changed, the court is empowered under Order VI, Rule 17 CPC to allow amendments in pleading at any stage which is just and necessary for final determination of suit between the parties. Learned counsel contended that while deleting paragraphs I6, 20 and 21 no prejudice will be caused to appellants, so far Arbitration Award is concerned, appellants/defendants have full knowledge that Committee of Llyods had appointed Mr. Clarke as Arbitrator and as such they are bound under Llyods Salvage Agreement to accept Arbitration Award.
7. Learned counsel contended that at the time of filing suit, plaintiff assessed the claim approximately on the basis of document Annexure '8' and when now matter has been finally determined by the Arbitrator the plaintiffs are entitled to put up their claim for an amount which has been found due against the appellants. He further argued that order impugned in appeal has been passed subject to all just exceptions, therefore, the appellants can raise all legal objections before the trial court and by no stretch of imagination any injustice has been caused in impugned order to them, as such appeal may be dismissed.
8. We have heard the arguments of learned counsel for the parties and with their valuable assistance record of the case has also been perused.
'). The examination of plaint and documents attached therewith reveals that respondent put up his claim for recovery of amount against appellant No.1 on account ol 41 At of the total cost of services of salvage rendered as per Lloyd Salvage Agreement LOF-1980 dated 25.3.1986 executed by Capt.
Erol Erk Master of the vessel with Cosel Salvage Services Limited. The contents of the plaint further indicate that respondent served notice on Lloyd Committee at London for taking security from the cargo interest as well as from the owners of appellant No.1 in the sum of US Dollar 1.25 million and US Dollar 300,000.00 respectively pending determination of the salvage award, in pursuance of this letter cargo interests accordingly furnished security in the sum of US Dollar 1.25 million but the registered owners of appellant No.1 though endeavoured through London Solicitor to negotiate for a reduced amount of security but failed altogether to furnish the same, resulting in frustrating the proceedings before Lloyd Committee for determination of the salvage remuneration, the owners of appellant No.1 have also failed to meet their financial obligations to Port Suez and on account of their continued default the vessel was disposed of by Suez authorities in March, 1987 by an administrative procedure, as vessel after its sale, found her way to the Gadani Ship Breaking Yard, therefore, she is liable to be arrested and sold for recovery of the respondents dues. In this behalf a complete statement of services rendered and the value thereof was annexed with the plaint as mark '8'.
10. It is the case of respondent that the vessel is to be arrested for recovery of US Dollar 320,525. 22 being 41% share of the total cost for which vessel is liable alongwith interest at the rate of 15% per annum from 25.5.86 to 1.7.87 in the sum of US Dollar 57035.74 thus aggregating total of US Dollar 377, 560.96 = Pak. Rs. 66,07,316.80 converted at the rate of Rs.17.50 = 1 US Dollar.
The appellants while submitting written statement denied the execution of Lloyd Standard Form of Salvage Agreement and LOF-1980 by Master of appellant No.1 with Cosel Salvage Limited, it was also denied that owners of appellant No.1 were called upon to furnish any kind of security equal to US Dollar 3.00 lac pending determination alleged salvage award, it was further denied in the written statement that appellant No.1 did not endeavour through their solicitor to negotiate any amount of security on account of any alleged claim of the respondent. The contention of respondent/plaintiff was also denied to the effect that the appellant No.1 was sold by Suez Port authorities it was however clarified that the appellants are aware that vessel in question i.e. Appellant No.1 was sold through public auction by "Red Sea Port Authorities" for recovery of their dues, due against her and she was sold through statutory sale to EL Sayed Abdel Fadil Muhammad and Ali Ahmed, Ali Abdel Hafez through publication and open sale after duly ad%'ertising the same and according to the minutes of the sale and delivery, the vessel was sold free from all encumbrances i.e. All debts, duties and rights previously attached to the sale to above buyers, therefore it was contended in written statement that ship was cleaned and free from all liens whatsoever. It was further contended that the respondent/plaintiff has no right of maritime lien on the vessel and if there was any such right as alleged by the respondent it was wiped of and cleaned when she was sold by Red Sea Port Authorities as per Egyptian laws which thus rendered it clean and free from all encumbrances or liens which attached to the vessel prior to its being sold.
As such any lien thus claimed by respondent was transferred to the sale proceeds in the hands of the Red Sea Port Authority which ought to have been attached by the respondent. The claim of the plaintiff in respect of 41% of the total cost of salvage on account of services rendered by respondent was totally denied being false, fictitious and untenable.
11. Provision of Order VI, Rule 17 CPC confers authority for allowing amendment of pleadings at any stage of the proceedings in such manner and in such terms as may be just and such amendment are to be allowed if necessary for the purpose of determination of real question in controversy between the parties. For reference Order VI, Rule 17 CPC is reproduced as under:-- The court may at any stage of the 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 question in controversy between the parties.
12. In view of the above provision of law and arguments advanced by learned counsel for the parties it is to be seen whether amendment in the plaint would amount to introducing a new case and whether any prejudice would be caused to appellant if such amendments are allowed to be incorporated in plaint.
13. In this behalf it is pertinent to consider that originally plaint was filed on basis of statement of expenditures annexed therewith as Mark '8' but now same is being substituted by Arbitration Award which is undoubtedly in favour of respondents, as such if award is considered as conclusive proof in favour of plaintiffs case it would mean that court will not make investigation to adjudicate upon the matter independently. Earlier at the time of filing of suit no indication was given in plaint in respect of Arbitration proceedings pending before any lawful authority. Thus question would arise whether after institution of suit, Arbitration Award can be made sole basis for acceptance of suit or not, or in other words in allowing amendment in the plaint under circumstances narrated above it would not amount to permit respondent to prove his case against appellants without affording them opportunity to contest the suit on basis of plea raised in written statement.
14. The learned counsel for appellant to substantiate his arguments submitted that once jurisdiction of court is invoked, the arbitration proceedings shall be nullity in the eye of law, therefore, claim of respondent cannot be adjudged basing on arbitration award. He further argued that according to the settled law the proceedings instituted in civil court shall supersede arbitration proceedings and no decision can be based by civil court on arbitration award which has been pronounced during pendency of suit. To substantiate these contentions, he relied on 1912-3 Kings Bench p.257, AIR 1922 Owadh p. 15, AIR 1950 Orisa p. 1969, AIR 1934 Lahore p. 887, AIR 1921 Calcata p.770, 1976 CLC p. 352.
15. On the other hand, the counsel for respondent urged that under English law the salvage agreement of arbitration, invariably replaces the admiralty court. To strengthen his contention he placed reliance on Chapter 5 at page 137 of Maritime Liens By Thomas (British Shipping Liens Vol. 14) and para 243 at page 139 was relied upon. For reference same is reproduced as under:- "Under such agreement arbitration invariably replaces the admiralty court as the forum responsible for the quantification of a salvage award for the resolution of dispute which may arise in connection with salvage services."
Besides above quotation he also relied on another book i.e. MARITIME LAW SALVAGE by Geoffery Brice and paragraph 613 at p. 269 was referred to, which reads as follows:- In making his authority (which is confidential and published by Committee of Lloyd) the Arbitrator acts upon the same principle of law as those applicable to proceedings in the admiralty court as discussed in chapter 2." There are three exceptions to this principle. First the arbitrator may (albeit rarely) be concerned to give effect to the exception to the principle of "no cure - no pay" contained in clause 1 (a) of LOF 1980. There is no parallel in any proceeds in court (unless the provisions of CMI Draft Convention Article 3-3 come to have the force of law). Secondly the arbitrator will be concerned to give effect where appropriate to the provisions of clause 18 relating to changes in the value of money or rates of exchange. Thirdly the arbitrator will be concerned specifically to fix a rate of interest under clause l2. So far as the period during which interest shall run for the period prior to the making of the award is concerned, the arbitrator in practice usually deals with the matter in the same way as that in which it is dealt with in the admiralty court; indeed the practice of allowing a period of six months for negotiation probably sprang from the practice of Arbitrators in this respect."
(If). The learned counsel for respondent further argued that by means of proposed amendments no attempt is being made to enforce arbitration award nor the suit is being converted into one which based on award, rather the award is in respect of same relief which is subject matter of the above suit and has been given by Arbitrator duly appointed by Lloyd of London and award is being introduced as piece of material evidence in support of his claim in the suit. The counsel also referred to the case of "Alexander Vs. M.V. Rice Traders" being suit No. 316/1984 decided by his Lordship as then he was Mr. Justice Salim Akhtar, Judge of Sind High Court and another judgment delivered by the same Honourable Judge reported in 1985 CLC p. 1355. In the judgment delivered in suit No. 316/1984 it was held as follows:- "The award has been filed like an ordinary piece of evidence and decree cannot be passed merely on that basis unless the court on appreciation of evidence comes to the conclusion that the plaintiffs claim has been legally and factually of (Sic) established) The award has so far been made rule of the court have (Sic) nor this suit has been filed on the basis of the award. It shall be treated as a piece of evidence to the effect that an award has been made in which remuneration mentioned therein has been granted to the plaintiffs."
17. The provision of section 4 of English Arbitration Act of 1889 and section 34 of Arbitration Act of 1940 are corresponding to each other. For reference both sections are reproduced below:- Section 4: Power to stay proceedings where there is a submission:- "If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission or any person claiming through or under him in respect of any matter agreed to be referred any party to such legal proceedings may add any time after appearance and before delivering any pleadings or taking any other steps in the proceedings applied to that court to stay the proceedings and that court or a Judge thereof if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was at the lime when the proceedings were commenced and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order slaying the proceedings."
Section 34: "Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred any party to such legal proceedings may at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was at the time when the proceedings were commenced, and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."
In the case of 1912-3 Kings Bench p. 257 the relevant portion is reproduced hereunder:- "The plaintiff brought an action against the defendants for sums which they alleged to have become due to them from the defendants under the contract and for damages for wrongful termination of the contract by the defendants. The defendants did not apply for a stay of proceedings in the action under section 4 of the Arbitration Act, 1889. Subsequently to the commencement of the action the defendants engineer under the before-mentioned clause without giving notice to the parties and without the knowledge of consent of the plaintiffs, made an award purporting to decide the matters which were the subject of the action and the defendants pleaded his award in bar to the plaintiffs' claim in the action:- Held (reversing the decision of Scrulton J) by Fletcher Moulton L. J. And Farwell L.J. Vaughan Williams L.J. Dissenting (1) that it was not competent for the engineer to determine the matters in question pending the action and that therefore his award was no bar to the plaintiffs' claim in the action."
18. The above rule is constantly being followed in the courts of Pakistan and India and no departure has been made as yet. Thus in view of above discussions it is held that arbitrator award being sought to be filed by seeking amendment in the plaint cannot be made basis of claim of respondent and if amendment sought for, is allowed this would amount to putting up a new case, and also changing the cause of action of the suit, of course, this would be detrimental to the interest of the appellant. But respondents are at liberty to use arbitration award as an evidence to substantiate the claim during trial of suit.
19. The respondent also sought amendment in the amount of the claim which also cannot be permitted for the sole reason that originally when suit was filed claim was based on expenditures made by plaintiff for rendering salvage services to appellant on the statement of expenditure i.e. Mark '8' with the plaint, but now this amount is being claimed on the basis of award and amount of claim had also been enhanced to Rs. 81, 63, 429.52.
20. By amending the plaint, plaintiff seeks to claim an amount which is higher than the claim which was originally mentioned in the plaint. On 3.8.1987 when suit was filed claim was based on converting US Dollars into Pakistani currency at the rate of foreign exchange Rs. 17.50 = 1US Dollar, whereas in application No.259 under Order VI, Rule 17 amount has been claimed by converting Pound Sterling into Pakistani currency at the exchange rate of Rs.33.36 = l, in this way, an increase of amount of Rs.15,112/72 has been claimed which is solely due to, arbitration award, therefore, if amendment as sought for, is allowed, the appellant will have to defend the suit for another additional amount, as such, from this point of view as well the proposed amendment cannot be allowed to be incorporated. Even otherwise, according to settled law if during pendency of an action, the rate of foreign currency is enhanced, the plaintiff will not be entitled to claim at higher exchange rate of currency, in this behalf reliance is placed on 1980 CLC p.256 which is very much instructive, and relevant para is reproduced as under:- "In our country for breach of contract damages are assessed in cases where the same are calculated in foreign currency but are required to be paid in terms of local currency at the rate of exchange prevailing at the time of breach of contract. (See: Henry Stainly Ramsden and others V.
S.M. Fazil & Co. Ltd. v. Messrs American Export Isbrandtser Lines Inc. Karachi and another (2)."
The above quoted view has also been expressed earlier in two other reports i. e. PLD 1976 Karachi p.23 and PLD 1956 Sind p. 47.
21. Now reverting to next contention of counsel for respondent, namely, that the courts have discretion to allow amendments which are necessary to settle down controversy between parties and when no prejudice is caused to opposite side, normally amendment should not be refused, Mr. Muhammad Naeem, learned counsel for respondent further emphasised that in impugned order learned Single Judge has categorically mentioned that amendment sought for in plaint would be subject to all just exceptions, as such the appellants will not be precluded to raise all legal objections while submitting amended written statement. On the question of discretion of the court, the learned counsel placed reliance on PLD 1985 Supreme Court p.345, PLD 1973 Supreme Court p.5()7.
PLD 1963 Supreme Court p.191, 1969 SCM R p.277, PLD 1971 Supreme Court p.762, PLD 1964 Karachi p.
172.
22. Whereas the appellant's counsel streneously contended that there is no cavil with the proposition that court is always competent and enjoys jurisdiction to allow amendment in plaint at any stage which are just and necessary for final disposal of case in between the parties, but the same time the court is duty-bound to exercise such jurisdiction in accordance with settled judicial principles particularly while allowing request for amendment that no prejudice is caused to other side and secondly of accurate determination of case amendment is necessary. However, such request cannot be permitted where request is being made to change complexion of the suit altogether and to introduce absolutely a new case basing on a new cause of action. To strengthen his arguments reliance was placed on AIR 1948 Madras p.179, PLD 1960 Lahore p.446, PLD Karachi p.
397, AIR 1982 Privy Council p.249, AIR 1946 Madras p. 105, AIR 1948 Nagpur p. 119, AIR 1946 Madras p.
497, AIR 1942 Sind p.4, AIR 1941 Allahbad p. 298, AIR 1950 Orisa p.169, AIR 1961 Patna p. 302-, AIR 1922 Awadh p. 1958.
After taking into consideration the cases reported in various law books by both the learned counsel for parlies, the following principles can be deduced:-
1. Amendment can be allowed at any stage if it does not change the cause of action of the suit.
2. Amendment can be allowed to seek consequential relief arising from the cause of action originally incorporated in plaint.
3. Amendment can be allowed to add additional relief available to plaintiff even before higher courts of jurisdiction such like High Court and Supreme Court.
4. Amendment can also be allowed for converting a suit from one relief to another i.e. If suit was filed for declaration, same can be converted into possessions etc.
5. Amendment cannot be allowed to base a plaint on different title.
6. Amendment can also not be allowed when malafide on part of plaintiff is explicitly visible in the pleadings.
7. Amendment cannot be allowed to raise a plea of fact which is derogatory to the plea already taken up in the plaint particularly when such fact amounts to admission in favour of other side.
8. Amendment cannot be allowed to substitute cause of action.
9. Amendment would also not be allowed to change complexion of the case.
10. Amendment cannot be permitted if it amounts to cause prejudice to opposite party.
11. Amendment would also not be allowed which will amount to introduce a new cause action which was not available at all at the time of filing of suit.
12. Amendment would not be permitted which may cause injustice to other side.
13. Amendment cannot be allowed on the ground of findings made by another Tribunal in respect of the same subject matter.
14. Rights/obligations accrued in favour of one party would not be allowed to be awarded of by way of allowing amendment.
There are numerous decided cases on the subject of amendment pronounced by superior courts of Pakistan and courts of foreign countries, but the latest judgment in this behalf delivered by the Honourable Supreme Court of Pakistan reported in PLD 1985 Supreme Court p.345 is highly valuable on the subject, as such, to have benefit of the same, relevant paras are reproduced below:- "What has been stated above is however, subject to a very important condition that the nature of the suit insofar as its cause of action is concerned is not changed by the amendment whether it fails under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened in the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action as the application for amendment shows would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. Instead of declaration etc, and secondly there was to be a similar change in the prayer paragraph. These amendments would not have caused embarrassment to the respondents defendants either in seeking and making similar amendments in the written statement. The inconveniences caused to the respondents as the provision itself visualises is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualises the award of adequate compensation: in that, the amendment has to be allowed "in such manner and on such terms as may be just."
"The above noted cases are amongst many others, indicative of the rule followed by the court on the subject under discussion. There are some cases in the circumstances whereof amendments were disallowed by the lower courts and the judgments were upheld by this court some times by refusing to grant leave to appeal on account of another rule that this court rarely interferes with exercise of discretion. In most of the other cases the court disallowed the amendment because it would have changed the cause of action or subject-matter in the lis."
Now accordingly in view of thorough examination of different case law, it is observed that in the instant case if amendments as sought for, are allowed, the title of the case would necessarily be changed and respondent would become entitled to claim an enhanced amount than original claim set up in the plaint. The perusal of the plaint also indicates that no reference in respect of pendency of arbitration proceedings was made therein, it means that with ulterior motive material facts were concealed from the court and now when arbitration award has been announced in favour of respondent, the same is being incorporated in the plaint in order to base the claim solely on it.
23. We would like to say that, the plea of amendment is also inconsistent with the plea set up in the plaint, as now the suit is being based on arbitration award, therefore, this would amount to putting up a new cause of action. Therefore, the complexion of the suit shall also be changed which would result in causing serious prejudice to other side. Thus in our opinion of request for amendments in plaint vide application No.259/1988 and 194/1989 are allowed it would amount to permitting respondent to put up a new case having a different cause of action which is contrary to spirit of law.
Resultantly appeal is allowed, impugned order dated 09.9.1990 is set aside and applications No.259/1988 and 194/1989 are dismissed. However, parties are left to bear their own costs.