1. This application has been filed by defendant No. 1 under Order V_ I, Rule 17, C.P.C. Praying that they may be allowed to amend paras. 5 and 7 of their written statement. They are not seeking any change or amendment in paras. 1 to 4 and 6 of their written statement. In para. 7 they want to add the prayer for dismissal of the suit. The amendments proposed in paras. 5 and 7 of the written statement of defendant No.1 reads as follows:--- "PARA FIVE. That the plaintiff was allotted extra land of 1000 square yards. On the basis of bona fide belief that the said land belongs to the defendant No.1 but it has now been revealed that the land (property of Pakistan Army) in dispute had already been allotted to defendant No.4. Accordingly defendant No.1 had no power to allot the same to plaintiff. The order passed by the defendant No.1 is therefore void and has no validity in the eyes of law. This position has emerged as a result of investigation carried out on receipt of notice addressed to the defendant No.1 by Military Estate Officer (Annexure-A) claiming the land in dispute but he was replied (Annexure-B) that the said land is of the defendant No.1 and has rightly been allotted to plaintiff. In order to ascertain the correct position, it was suggested to M.E.O that a joint survey was carried out (Report annexed as Annexure-C). The survey report has established that the disputed land does not belong to defendant No.1(Annexure-C)."
2. "PARA SEVEN It is prayed that the suit of plaintiff be dismissed."
3. This is a suit for permanent injunction filed by the plaintiff who was allotted an additional land measuring 1000 square yards adjacent to her plot bearing No. 13, Street No. 15, Phase-V, Defence Officers' Housing Authority, Karachi which she acquired in the year 1980, hereinafter referred to as the plot in question. The case of the plaintiff is that in the year 1980 she purchased the plot measuring 2000 square yards, which was transferred, in her name and accordingly a sub-lease in Form ' A' was also executed in her favour. That in the year 1988 an additional land, which is now subject-matter of the suit, was regularised/ transferred by the defendant No.1in her favour against which an amount of Rs.10,79,990 was paid to the defendant No.1. That the plaintiff constructed a boundary wall around this piece of land but on 15-2-1994 she found that some persons have trespassed on this land and started construction thereon. It was revealed that they were carrying on this construction under the instructions of defendants Nos.2 to 4. In these circumstances, the plaintiff rushed to this Court and filed suit for permanent injunction against the defendants Nos.2 to 4 restraining them from trespassing on the said piece of land or raising any construction. She has also prayed for mandatory injunction against the defendants Nos.2 to 4 for demolishing the construction raised on the additional area and to remove them. On 8-8-1994 the defendant No.1filed a very brief written statement, either admitting certain contents of the plaint or not specifically denying them. Defendants Nos.2 to 4 have filed their detailed written statement on 18- 4-1994 in which they have claimed their fight and entitlement on the aforementioned additional land of 1000 square yards and have challenged the authority of defendant No.1 to allot the same to the plaintiff. They have prayed for dismissal of suit with cost.
4. I have heard Mr. Mushtaque Memon, Advocate for plaintiff who has vehemently opposed the grant of this application. I have also heard Mr. Nazar Hussain Dhoon, Advocate in support of this application. Mr. Syed Tariq Ali, learned standing counsel for the Government of Pakistan appearing for defendants Nos.2 and 4 and Mr. Mumtaz Ahmed Shaikh, Advocate for defendant No.3 have extended their no objection to grant of this application. On 20-11-1995, during hearing of this application this Court directed the following three persons to appear in Court for the purpose of ascertaining the real facts of the case and to answer material questions relating to the suit.
5. (i)Director Planning Pakistan Defence Officers Housing Authority Karachi.
6. (ii)Mr. Jamaluddin Ansari, Military Estate Officer (iii)Lt.-Col. Abdul Rashid Warraich, A.Q. Of defendant No.3 On 28-11-1995 all the abovesaid three persons were examined by this Court. All of them have stated that the defendant No.1 was not authorised to allot the additional land measuring 1000 square yards to the plaintiff and that the process for regularisation of earlier allotment of plot 2000 square yards to the plaintiff is under-consideration. In view of the examination of three persons, the following observations were made by this Court:--- "In view of the above statements of the three officers, it appears that the parties are not at issue as far as initial allotment of Plot No. 13, 15th Street, Phase V, D.H.A., Karachi measuring 2000 square yards is concerned. The subject-matter of the suit as tentatively appears, pertains to the allotment of extra land measuring 1000 square yards allotted by the Defence Housing Authority. Mr. Mushtaque Memon requests for time to seek instructions from his client in view of today's development. "
7. Mr. Nazar Hussain Dhoon has strenuously argued that the amendments sought through the instant application are very material and are also necessary for the complete adjudication of the points involved in this suit. He has referred to Annexure ' B' dated 1-9-1994 filed with the supporting affidavit which is a letter addressed by the defendant No.1 to the Military Estate Office authorising the Deputy Director, Planning, D.H.A. To be a member of the team to inspect the land in question. He has also referred to Annexureto this application which indicates that a joint survey was conducted by the defendants through which it transpired that the lands allotted to the plaintiff including the original land of 2000 square yards never belonged to the defendant No. 1. This fact has been mentioned in the written statements of the other defendants i.e. 2 to 4. In support of this application, Mr. Nazar Hussain Dhoon has referred to the cases of Mst. Sardar Begum v. Malik Khalid Mahmood and others 1988 CLC 2342, Wali Muhammad v. Din Muhammad 1988 CLC 2306 and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180. In the reported case of Mst.
8. Sardar Begum a learned Single Judge of Lahore High Court held that the consideration in allowing amendments in the written statement are not governed by the same principle as seeking amendments in the contents of the plaint. It was further held that Courts are more liberal in allowing amendments in defence than of the plaint. In the case of Wali Muhammad, another learned Single Judge of Lahore High Court allowed the revision application of the defendant and permitted to file his amended written statement before the trial Court on the grounds to ensure factual and complete adjudication of the controversies between the parties. This amendment was allowed when the case was ripe for the evidence. A Full Bench of the Hon'ble Supreme Court in the case of Ch. Abdul Rashid observed that if at all a decision had to be given on the controverted question of fact then the Court should have invited and considered evidence to prove or disprove the same in accordance with law by allowing the appellant to amend his written statement. It was held that the mere fact that the said application was moved 12 yearn after the institution of suit was no ground for rejecting the amendment. It was further held that great prejudice was suffered by the appellant/defendant by refusing the amendment of written statement and by not framing any issue on the controverted question of existence of right of pre-emption. Appeal was allowed and the case was remanded to the trial Court with the permission to the appellant/defendant to file his amended written statement.
9. Mr. Mushtaque Memon has argued that one a defendant has made admissions in his written statement, he cannot be allowed to resile from the same as it will cause prejudice to the plaintiff.
10. According to the learned counsel such admissions in the written statement creates a right in favour of the plaintiff for decree on admission. In support of his contention, he has referred to the cases of Haji Suleman Ali Muhammad v. Ahmed Ali and another PLD 1982 Kar. 111, Secretary to Government N.-W.F.P., Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242. Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88, Ghulam Mursaleen v. Mian Jahangir Mahmood and others 1991 CLC Note 177 at p.140 and the case of Mst. Hajiani Hajrabai v. Afzal Ali and,. 2 others 1992 M LD 453.
11. The above reported cases clearly support the proposition that a defendant should not be allowed to resile from his admissions while allowing amendments in the written statement. In the case of Ha ii Suleman Ali Muhammad, a learned Single Judge of this Court Mr. Saleem Akhtar, J. (as his lordship them was) held that while filing amended written statement the defendant besides replying the amended part of plaint, can also raise pleas which may be legally available to such defendant but he is not entitled to resile from the admissions made in the earlier statement or to put a completely new or inconsistent case. It was observed in the said case that on admission made by a party in the pleading cannot be revoked without leave of the Court. In the present case, the defendant No.1 is seeking leave of the Court to resile from such admission on the facts as narrated hereinabove which developed after filing of the first written statement. In the case of Secretary to Government, N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v Abdul Kafil, it was held by the Hon'ble Supreme Court while referring to Order VIII, Rule 5, C.P.C. That the admissions made in a written statement have altogether different legal significance than admissions generalh In the case of Atlantic Steamer's Supply Company, it was held that the Court has power to allow amendment of the pleadings at any stage of the proceedings provided it does not change the complexion of the case and does not cause prejudice to the case of the parties. In the last reported cases a learned Single Judge of this Court followed the rule laid down in the case of Haji Suleman Ali Muhammad. I am of the considered view that the facts of these reported cases are distinguishable from the facts of the instant case. No doubt admissions were made by the defendant No.1 about the rights of the plaintiff and their entitlement to allot the land in question. But subsequently it transpired that they have no such right to allot this land to the plaintiff. This is a subsequent development. However, the right and entitlement of defendant to allot suit property- to the plaintiff have been specifically raised and challenged in the joint written statement filed by the defendants Nos.2 and 4. Even if the present defendant is not allowed to raise this plea there still remains this issue between the plaintiff and defendants Nos.2 to 4. I may point out here that the plaintiff is not seeking any relief against the defendant No.1 therefore, the so-called admissions made by them are of no help to the plaintiff. The reliefs sought are against defendants Nos.2 to 4 who have already raised such facts as are claimed in the amendments. Therefore, even if this application is allowed no prejudice would be caused to the plaintiff.
12. The next contention of Mr. Mushtaque Memon is that in paras. 1 to 4 the defendant No.1 has admitted the title and ownership of the plaintiff while in para. 6 they want to deny the same and if such amendments are allowed, it would amount to allowing the defendant No.1 to adopt an inconsistent plea. In support of his contention, he has relied upon the case of Budho and others v.
13. Ghulam Shah PLD 1963 SC 553 and the case of Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari 1993 CLC 31. The question before the Hon'ble Supreme Court in the case of Budho was that how far a party is permitted to take inconsistent plea and how much facts are to be stated by a plaintiff in the pleadings. After referring to Order VI, Rule 2, C.P.C., it was held that a plaintiff is bound to state the facts and is confined to a statement of facts and is not bound to state in the pleadings the legal effects, which flow from the facts that he alleges. 1On the question of variance and inconsistency of the pleadings it was observed as follows:--- "There is no bar to a person relying upon more than one alternative source of title. An alternative case should be distinguished from an inconsistent case. No two facts can be said to be inconsistent with each other if both could have happened. The test of inconsistency between two facts would be that a plaint which contains both the facts could not be verified as true by a plaintiff if for instance the plaintiff alleges a document to be a forgery and at the same time states that the execution by him of the document is the result of undue influence, the pleas are inconsistent with each other and a plaintiff cannot verify both the statements of facts as true. In the case before us the two alleged inconsistent facts are only the Will and the relationship. There is obviously no inconsistency between the facts themselves. When a party puts forward more than one source of his title he is not taken up an inconsistent position. He is only pleading in the alternative: "
14. It is to be seen that the Annexure 'B' which the defendant No. 1 has proposed to annex with the amended written statement, clearly shows that till September, 1994 the defendant No.1 was claiming the right to allot the plot in question as well as was also admitting the plaintiff to be a lawful owner of the suit property. The first written statement was filed by the defendant No.1 on 8-8- 1994. Subsequently, an inspection of the entire land was done by the defendants and it was then revealed that the defendant No.1 was not competent to allot such plot. The contents of the plaint show that the defendant No.1 is a formal defendant as no relief has been sought against it. The question of entitlement of the plaintiff and defendant No.1 has already been challenged by the remaining defendants. In view of the pleadings of the defendants Nos.2 to 4, there may arise an issue on this question, therefore, if this application is dismissed even then the plaintiff would be required to prove his case for obtaining prohibitory as well as mandatory injunction. Here, I would like to refer to a decision of the Hon'ble Supreme Court in the case of Mst. Amina Begum and others v: Mehar Ghulam Dastgir PLD 1978 SC 220 where it was held as follows: --- "Indeed in our considered opinion a discretion is- vested in this behalf in the Courts to be judicially exercised in proper case in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest, of justice. "
15. The above principle laid down by the Hon'ble Supreme Court supports the contention of the learned counsel for the defendant No.1 that it would be with the view to avoid multiplicity of proceedings and to adjudicate all the questions between the parties that the amendments in defence may be allowed.
16. As a result of the above discussion C.M.A. 551 of 1995 is granted and the defendant No. 1 is allowed to amend its written statement. Defendant No.1 is further directed to file its amended written statement within two weeks and to supply the copies of the same to the plaintiff. The plaintiff shall be entitled to, and if she chooses so, may file her replication.
17. A.A./M-57/K Amendment allowed.