1. ' This is a Civil Revision Application under section 115, C.P.C. Directed against the order dated 16-1- 1995 passed in F.C. Suit No,145 of 1989 (Ali Asghar Shah v. Hashim Shah and others) whereby an application under Order 6, Rule 17, C.P.C. Was dismissed by the learned Senior Civil Judge, Sanghar as per impugned order, hence the present revision has been filed by the applicant/plaintiff.
2. ' I have heard Mr. Ch. Naseer Ahmed learned counsel for the applicant and Mr. Muhammad Ismail Memon learned counsel for the respondents and perused the impugned orders and annexures filed with the revision.
3. 'The learned Senior Civil Judge in the impugned order' has observed:-- "After hearing the learned advocates and perusal of the entire above-cited amendment sought plus law on the point, I am of the view that the plaintiff wants not only to change the nature of his suit but new relief is sought so also he wants to change the cause of action which if permitted shall cause prejudice to the opposite-party with the result, the application does not deserve merits and is accordingly rejected."
4. ' Mr. Ch. Naseer Ahmed learned counsel for the applicant has argued that neither the change in the nature of suit nor change in cause of action would take place in case the amendment is allowed.
5. He has argued that instead of his suit for declaration and injunction he has prayed that he may be permitted to have the relief by way of specific performance of the contract which in no way would alter the nature of the suit or would change the cause of action and this amendment if allowed would consequently be made with the necessary changes in the context of the grounds stated in the application for amendment. He has also contended that in case amendment is not allowed, then he would be barred under Order 2, rule 2, C.P.C. For the said relief of specific performance. He has further contended that provisions of Order 6, rule 17, C.P.C. Stated that when it is found that amendment was necessary for determination of real questions in controversy between the parties, then the same was to be allowed in order to do complete justice and that superior Courts have always allowed such amendments and have taken liberal view on technical objections.
6. ' Mr. Muhammad Ismail Memon, learned counsel for the respondents has argued that each and every para. Of the plaint by the amendments prayed for would change the nature, form, cause of action of suit and the relief prayed for, which could not be allowed under the law as it would cause prejudice to the rights of the respondents. He has placed reliance upon Mst. Khudeja v. Jehangir Khan and 37 others (1971 SCM R 395) wherein Supreme Court of Pakistan at page 397 observed:-- "However, he filed an amended plaint by an application under Order VI, rule 16 whereby he sought to controvert the whole position, by alleging, for the first time, that Sarbuland had predeceased his father, Nasir, in the year 1904, and that Mst. Habib Noor was only given a maintenance grant, and had no title to the suit land. This amendment was allowed by the Court, which, we feel, should not have been done, because it changed the entire nature of the suit."
7. ' The next case cited by the learned counsel for the respondent is Kanda and others v. Wagu (PLD 1949 Privy Council 270) wherein it was observed:-- "The powers of amendment conferred by Code are very wide, but they must be exercised in .Accordance with legal principles, and an amendment would not be allowed which would involve the setting up of a new case."
8. ' The last case cited by him is Syed Akhlaque Hussain and another v. WAPDA, Lahore (1977 SCM R 284) wherein the Supreme Court of Pakistan observed:-: "It will be seen that the real question in deciding as to the propriety of allowing an amendment of the pleading is, to use the words employed in the relevant rule itself, whether the amendment is necessary for the purpose determining the real question in controversy between the parties. If so, then leave to amend ought to be allowed liberally, provided of course it does not have the effect of setting up an altogether different cause of action."
9. ' In the instant case, the applicant/plaintiff has sought amendment in the plaint that instead of "Suit for Declaration and Injunction" he be allowed to amend the plaint "Suit for Declaration, specific performance, injunction and mutation of record of rights" and in the prayer clause, the applicant/plaintiff has sought substitution that applicant/plaintiff was entitled to 1/4 portion of the suit land being cousin of late Haji Qadir Ali Shah and further that respondents/defendants Nos.1, 2 and 4 be directed to specifically perform their part of the contract by getting the sale-deed executed and registered and to receive remaining amount to the extent of their respective share and in their failure to do so the applicant/plaintiff be allowed to deposit remaining amount to the extent of respective share of the defendants/respondents in the Court and the Nazir of the Court be directed to get the sale-deed registered from concerned Sub-Registrar. It would be seen from the application made for amendment that the applicant/plaintiff has sought two major amendments to be made in the plaint. The first is the change in the heading signifying the suit being for specific performance instead of Declaration and secondly there was to be a similar change in prayer paragraph in terms of the title of the suit and this amendment has been sought in the light of the observation made by the District Judge in the revision in respect of amendment in plaint, so that suit filed under section 42 of Specific Relief Act could be maintainable. In Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) the Supreme Court of Pakistan observed at page 353 that:-- "Be that as it may, the learned Judge himself observed and rightly so, that the delay alone in applying for the amendment cannot be a determining factor for deciding an application under Order VI, Rule 17, C.P.C. The use of expression 'at any stage proceeding' 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.
10. ' 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 question in controversy. Therefore, once the Court decides that the amendment is necessary for the said purpose 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 it is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts.
11. In the case 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. What has been stated above; however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or 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 if 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 and others instead of declaration and others and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassm ent to the respondents/defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualises is not only natural but would ordinarily be occasioned in almost every case. This is why law visualises the award of compensation, in that, amendment has to be allowed ' in such manner and on such terms as may be just' . "
12. ' In the instant case the District Judge in revision remanded the case with the observation that amendment could be made as stated by the learned counsel for the petitioner so as to maintain the suit. In PLD 1985 Supreme Court 345 case, the suit was filed for declaration and Injunction subsequently in the second appeal, an application for amendment was made to allow the plaintiff to amend the suit for specific performance with necessary changes in the body of plaint and the Supreme Court of Pakistan after considering number of decisions came to the conclusion that amendment could be allowed at any stage, if it was not mala fide, and liberal interpretation should be given to the provisions of Order 6, rule 17, C.P.C. When it is found the amendment was necessary, then it would be the duty of the Court to order for the amendment and further the amendment in the title of the suit would not change the substance of the suit and consequent changes in the body of plaint would not alter the form and nature of the suit and that new and different element by itself would not constitute different cause of action or new suit and genuine amendment if denied would create enormous difficulty for the applicant/plaintiff. Facts of the instant case are much better than the cited case as the amendment has been sought even before the issues are settled and the proposed amendment has been found necessary to determine the questions in controversy between the parties. Be that as it may, the respondents could be compensated in case any embarrassm ent is caused to them. The facts of the decisions cited by the learned counsel for the respondents are different and distinguishable to the facts of the instant case. The case reported in 1977 SCM R 284 on the contrary supported the case of the applicant.
13. ' In view of aforesaid reasons and case-law cited this revision application has merit, consequently it is allowed and the impugned order is set-aside whereby amendment application is allowed subject to payment of Rs,1,000 as cost of the amendment, to be paid to the learned counsel for the respondents before the amended plaint is filed, thereafter respondents /defendants would also be entitled to file amended written statement if so desired.