' In this suit for specific performance of contract in respect of Plot No,2- A, Block-C, Unit No,7, Latifabad, Hyderabad, initially filed before the Senior Civil Judge, Hyderabad and later represented before the High Court, plaintiffs seek amendment in para.3 of the plaint by substituting the figure of "Rs,250,000" by figure "Rs, 450,000" which is the sale consideration for the contract. In para. 4 of the plaint which says that the defendant entered into an agreement to sell the suit property to the plaintiffs under the terms and conditions incorporated in the agreement an addition has been sought to the effect "that at the instance of defendant's husband, the consideration in the sale agreement was shown at Rs,250,000. Consequently in para. 5 of the plaint mentioning that on 24- 6-1978 defendant received a sum of Rs,150,000 from the plaintiffs and put them in possession of the suit property in part performance of the contract figure of Rs,150,000 is sought to be substituted by the words "sums of Rs,150,000 and 2 Lacs".
2. Necessity to seek amendment arose as according to the plaintiffs deal was struck for a consideration of Rs,250,000 on 15-6-1978 when a cheque for Rs,50,000 was given to the defendant as earnest money. Again on 24-6-1978 defendant received a sum of Rs,150,000 and put the plaintiffs in possession of the suit property in part performance of the contract. In the written statement however defendant pleaded that on 14-6-1978 there was an oral agreement for sale of the suit property for a consideration of Rs,450,000 and a cheque for consideration of Rs,50,000 drawn by Abdul Nabi son of Ghulam Nabi in whose name the property was to be purchased was handed over by Estate Broker against a duly executed receipt in which the agreed sale consideration was mentioned as Rs,450,000. Receipt of Rs,150,000 on 24-6-1978 was admitted with the reservation that this payment was to be made on 19-6-1978 when the alleged agreement was signed but it was delayed.
3. Learned counsel for the plaintiffs submitted that the amendment in the plaint became essential in view of the plea raised on behalf of the defendant and in order to determine the real question in controversy between the parties allowing of amendment is absolutely necessary which would neither change the character of the suit nor the cause of action. Learned counsel referred to the language employed in Order VI, Rule 17, C.P.C. Which reads as under: "O.VI, R.17. Amendment of pleadings.---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."
4. On the other hand learned counsel for the defendant strenuously opposed the allowing of the amendment on the ground firstly that the prayer for amendment is highly belated as it was asked after inordinate delay of more than 10 years; that the plaintiffs cannot resile from the admissions made by them in the plaint and thirdly that the relief of specific performance being purely discretionary with the Court, plaintiffs having approached the Court with unclean hands they are not entitled to the relief of specific performance.
5. Mr. Jhamat Jethanand learned counsel for the plaintiff relied upon Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345) in which very liberal view for allowing amendment of pleadings was taken.
Laying emphasis on the expression "at any stage of proceeding" used in Order VI, Rule 17, C.P.C.
Which is not without significance and dealing with the question of delay in applying for amendment or expiry of period of limitation or increase in court-fee and change of jurisdiction, Muhammad Afzal Zullah, J. (as his lordships then was) speaking for the Bench observed that the delay alone in applying for the amendment cannot be a determining factor for deciding an application under Order VI, rile 17, C.P.C. While observing that the use of the expression "at any stage of the proceeding" in rule 17 is not without significance, their lordships observed that the word "proceeding" 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. It was further observed that the foregoing interpretation is also in accord with the mandatory languag 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 is also bound to direct the amendment for the said purpose. Thus the rule can be divided into two portions. 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.
6. Aforesaid view was followed in the subsequent case of Muhammad Anwar v. Allah Bux (1986 SCMR 1575). In this case plaintiffs were allowed to amend their plaint so as to include ah additional ground in support of their claim for preferential right to acquire the suit land, by way of pre- emption.
7. On analysis of the pleadings of the parties, it is evident that the parties are agitating the right to specific performance of a contract of immovable property for a valuable consideration. Apart from the stipulation in the agreement of sale consideration for the transfer of the property being of utmost importance, I am fully convinced that the proposed amendment is absolutely necessary for a just and proper determination of the consideration agreed upon between the parties. Without the determination of the quantum of consideration, to my mind, no effective and complete adjudication is possible on the issues arising in the suit.
8. On the other hand Mr. Mushtaq Ahmed Memon, learned counsel for the defendant relied upon Suleman Ali Muhammad v. Ahmed Ali (PLD 1982 Karachi 111). The case is totally distinguishable on facts. In the reported case learned Single Judge sitting on original side had allowed application for amendment of plaint by consent subject to all just exception. After the amended plaint was filed defendant while filing amended written statement besides replying amended part of plaint deleted the admission made by them in the original written statement. Contention before the Court was that the defendant ought to have restricted the amended written statement to the reply in respect of amended paragraphs of the plaint. In the context on this back-ground Salim Akhtar, J. (as his Lordships then was) observed that although the provisions of Order VI, rule 17, C.P.C. May not strictly govern such amendment in the written statement, the Court is entitled to apply the principles relating to amendment of pleadings while examining the amended written statement. All such amendments which a defendant is not entitled to plead or are in contravention of the principles governing amendment of pleading will not be allowed to be taken in the amended written statement without the permission of the Court. His Lordships further observed that the Court has vast discretionary powers to grant amendment and should be liberally exercised to promote the ends of justice and determine the real controversy between the parties while filing amended written statement besides replying of the amended part of the plaint, the defendant can also raise pleas which may be legally available for him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement. Admissions made by a party in the pleading cannot be revoked without the leave of the Court. On a careful consideration of the order passed in the reported case, it would suffice to say that the facts of the case in hand are completely distinguishable. By seeking the proposed amendment from this Court the plaintiff is not allowed to amend the plaint at his own whims or to resile from the admission made by him in the original plaint. Needless to observe the question would be open for scrutiny after the amended plaint is filed and virtually at the stage of recording evidence.
9. Learned counsel then referred to unreported judgment in Suit No,19/1972 decided by Salim Akhtar, J. (as his lordships then was) on 21-4-1982 dismissing the suit for specific performance for sale of land. Learned counsel conceded that this judgment is sub judice in High Court Appeal No,22/1982 but he ventured to say that the jurisdiction to decree specific performance being discretionary with the Court the person approaching the Court for such discretionary relief with unclean hands and concealing material facts is not entitled to it. With due deference again there is no dispute with the legal position as it stands above case is of no assistance to the defendant at this stage and the point may appropriately be raised at final stage of judgment of the suit after recording evidence.
10. Lastly Mr. Mushtaq Memon referred to the judgment by Saiduzzaman Siddiqui, J. Dismissing a suit for specific performance in Shjar Ali Hoti v. Esmail Sobhani (1985 CLC 342 Karachi). Dismissal of the suit in the reported case was based on evidence adduced by the parties in which agreement of sale consisted only of a receipt acknowledging a sum as earnest money and not showing essential terms of sale consideration, time for completion of sale, payment of balance of sale consideration or anything about delivery of possession of the property. This case is therefore of no avail to the defendant and at any event does not deal with the point relating to amendment of pleadings.
11. No other point was urged on behalf of the defendant nor was any law to the contrary cited at the Bar.
12. For the facts and reasons as stated above, I am clearly of the view that the proposed amendment is necessary for just and effective decision of the real question in controversy.
Amendment prayed for is therefore allowed.
13. CMA 539/1996 By this application plaintiffs seek amendment in para. 13 of the plaintsubstituting the figure of "250,000" by figure "450,000" and figure "7025" by figure "12025". For the reasons assigned while deciding earlier CMA, this application is also granted.
14. Plaintiffs are directed to submit amended plaint within four weeks.