' This is an application under Order VI, Rule 17 read with section 151 of the Civil Procedure Code, 1908 filed by the plaintiff seeking amendment in clause (ii) of the prayer clause in the plaint. Plaintiff is seeking addition of the prayer for restoration of the possession by deleting the prayers of "demolishing the encroachment". The reason given in the supporting affidavit by the plaintiff is that at the time of filing of this suit, this prayer was not included due to oversight and inadvertence. The plaintiff has filed this suit for declaration and permanent injunction against the defendants in respect of Plot No, 1-A, 1st North Street, North Circular Avenue, Defence Housing Authority, Karachi measuring 2257 square yards.
2. I have heard Mr. Abul Khair Ansari, Advocate for the plaintiff, Mr. Zafar Iqbal, Advocate for defendant No, 1 and Mr. Habibullah Jatoi, Advocate for defendant No,
2. It is vehemently urged by Mr. Abul Khair Ansari that by allowing amendment in the plaint at this stage, it will not change the nature of the suit. He has also stated that addition of the prayers for possession will neither cause any prejudice nor hardship to the defendants. He has relied upon the case of Ahmad Din v.
Muhammad Shafi and others (PLD 1971 SC 762) and Keramat All and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191). Mr. Zafar Iqbal has strongly opposed grant of this application on the grounds that it has been filed at a very belated stage when the evidence of the parties are concluded and the case is ripe for arguments. Mr. Jatoi has also raised plea of delay in filing the above application. He has further urged that no reasonable or sufficient cause has been shown by the plaintiff for filing the abovesaid application.
3. The case of the plaintiff is that the plot in question was initially of 2000 square yards when it was first allotted to him in the year 1963 but during the measurement in the year 1964 it was found that an area of 2545 square yards is available which was given to the plaintiff by the defendant No,
1. It is further case of the plaintiff that he has raised construction on an area of 2257 square yards as well as he constructed boundary wall on the further area of 288 square yards. He has also prayed for prohibitory injunction against the defendants. In prayer clause (iv) he has also prayed for additional reliefs as this Court may deem fit in the circumstances of the case.
4. In the case of Keramat All and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191), one of the questions which came up before the Hon'ble Supreme Court for consideration was whether the suit was barred under section 42 of the Specific Relief Act when the plaintiff to whom the relief of delivery of possession was available failed to claim such consequential relief in order to avoid payment of ad valorem court-fees. It was held by the Hon'ble Supreme Court that the Supreme Court has power even to grant leave to amend the plaint at the stage in which the said matter has reached before the Supreme Court and consequently allowed the amendment and remanded the suit to the Trial Court for disposal of the same in accordance with law. It was also held in this reported case that by allowing amendment of the prayer clause by adding prayers for possession it does not alter nature of the suit. In the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762), the Hon'ble Supreme Court dismissed the appeal and held that the suit was barred but in the end of the judgment, made the following observation which is very relevant for the determination of this application: "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."
5. Besides the abovesaid two judgments, there are several reported cases of Supreme Court in which the question of amendments in the prayers clause of the plaint at belated stage was considered. In the case of National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another (1974 SCM R 131), this Court allowed an application for amendment of plaint filed by the plaintiff to raise additional plea against which the defendant went to the Supreme Court seeking leave to appeal which was disallowed and it was observed by the Hon'ble Supreme Court that: "It cannot be gainsaid that unless respondent No, 1 is allowed to raise this plea his subsequent suit on the new plea would be barred under Order II, Rule 2, C.P.C."
' This view was followed by the Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345). Several other case-laws were considered in this case. In this reported case, the plaintiff;. Filed a suit for declaration which was decreed by the Trial Court. The defendants went into the appeal before the First Appellate Court and the decree of the Trial Court was set aside on the ground that the plaintiff should have filed a suit for specific performance of agreement and not declaratory suit. In the second appeal an application was filed to amend the plaint which was rejected by the Second Appellate Court on the ground that it was filed at a belated stage and if allowed it would cause injustice and injury to the defendant. Against this order, the plaintiff went before the Supreme Court seeking leave to appeal which was accordingly granted. The Hon'ble Supreme Court allowed the amendment of the prayers and the suit for declaration was allowed to be converted into suit for specific performance. It was held that these amendments would not have caused any embarrassment to the respondents/defendants either in seeking and making similar amendments in their written statement. It was also held that this will not change the cause of action accrued to the plaintiff. The order of the High Court was set aside and the appeal was allowed. In this last reported case, Supreme Court reiterated the law laid down in the cases of Keramat All and National Shipping Corporation. In a recent case, the Supreme Court refused to grant leave to the defendant against the order of Lahore High Court who was aggrieved by the order of amendment in the plaint allowed by the First Appellate Court whereby prayer for specific performance was added in a declaratory suit. The Supreme Court followed the law laid down in the cases of Mst. Ghulam Bibi v. Sarsa Khan and Ahmad Din v. Muhammad Shafi and held that by mere adding an additional prayer in the plaint without changing the contents and averments made in the plaint, the nature of suit is not changed or altered. (See Mst. Barkat Bibi v.
Khushi Muhammad and others (1994 SCM R 2240). It was further held that such amendment will not change even the cause of action. In the case of Muhammad Mian v. Syed Shamimullah and others (1995 SCM R 69), the plaintiff who was appellant before the Supreme Court filed a suit for declaration, injunction, and cancellation of mutation which was decreed by the Trial Court.
Defendant/respondent went into the appeal before the District Judge which was accepted and the suit of the appellant was dismissed. This Court maintained the judgment of the learned District Judge, inter alia on the ground that the appellant/plaintiff failed to seek relief for recovery of possession of the disputed quarter. Plaintiff went before the Supreme Court where leave was granted. At the appeal stage before the Supreme Court, appellant/plaintiff filed application for amendment of the plaint. The amendments sought were in regard to the prayer for possession and addition of Rs,50,000 as court-fees. Appellants were allowed amendment and the finding of this Court was set aside. In this reported case, the rule laid down by the Supreme Court in the case of Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) was reiterated and it was held as follows:- "The application has been contested by the respondents. It has been stated that the application has been filed after long delay. The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage.
The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is consequential relief for declaration. This relief arises out of the claim of the appellant.
The amendment sought by the appellant is only of technical nature. No, further evidence is required. In Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) it has been observed that 'the suit could not fail merely by reason of fact that consequential relief by way of possession had not been claimed. If the suit was otherwise maintainable and the appellant 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.' In Zubaida Bibi v. Hashmat Bibi (1993 SCM R 1882) the prayer for amendment of plaint was allowed. We, therefore, allow the amendment at the cost of Rs,5,000. The appellant shall pay ad valorem court-fee...."
6. I have gone through the case of the parties. Amendment sought by the plaintiff is up to the extent of addition in the prayer clause. Keeping in view the law laid down by the Supreme Court and as discussed hereinabove, I am of the view that if such amendment is allowed, it will neither change the nature of suit nor will change the cause of action. I, therefore, allow the application for amendment filed by the plaintiff as prayed with cost of Rs,5,000 which shall be shared equally by the defendants for the reason that this application was filed at belated stage. The plaintiff is further directed to amend para. 20 of the plaint and to re-assess the market value of the property for the purpose of paying court-fees on the additional relief of possession. With these observations, C.MA.
No, 1554 of 1995 stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.