' This petition under section 115, C.P.C. Seeks revision of order dated 10-1-1993 of the learned Civil Judge, Rawalpindi whereby the petitioner's application seeking amendment of his written statement was rejected. The dispute arises out of a suit for possession, permanent injunction and recovery of mesne profit brought by the respondents on 5-12-1989 against Muhammad Aslam who died during its pendency and was substituted by his widow,-three daughters and four sons including the petitioner.
2. It is stated by the respondents in the plaint that they were owners of property No,A-98, Jinnah Road, Rawalpindi on the front of which Nazool land falling in Khasra No,903 was located. It is claimed that the Rawalpindi Improvement Trust vide its Resolution No,2 dated 30-4-1970 (Exh.P.7) resolved to transfer Nazool land abutting on the road to the owners of the properties located at the back of the said land. The respondents consequently applied for transfer of the land situated in front .Of their property which was approved by the trust vide Resolution No,29 dated 1-7-1986 (Exh.P.8y. In pursuance whereof the land measuring 650 sq. Ft. Falling in Khasra No,903 was transferred to the respondents through a registered instrument dated 30-7-1986. In the plaint it is stated that initially the predecessor of the petitioner--Muhammad Aslam, was in possession of wooden Khokha erected on a part of Nazool land sold to the respondents by the Rawalpindi Improvement Trust and that subsequently he extended the Khokha by trespassing over a part of the land at its back.
3. Out of the defendants only the petitioner contested the suit by filing a written statement in which he raised various preliminary objections as to the maintainability of the suit, like res judicata, estoppel, non joinder and misjoinder of necessary parties, lack of locus standi of the respondents and ouster of jurisdiction of the Civil Courts. On merits it was pleaded that the petitioner was in possession of Property bearing No, A/99 owned by successor of Muhammad Hussain and was not in occupation of Property bearing No,A.98 belonging to the respondents. Plea of adverse possession was also raised.
4. On 27-7-1991 the trial Court framed a number of issues arising out of pleadings of the parties. In support of their case the respondents/plaintiffs examined two witnesses apart from respondent No,1 in addition to the documentary evidence and closed their evidence on 12-12-1991 reserving the right of rebuttal. The petitioner, on the other hand, produced two witnesses in addition to his own testimony and closed his oral evidence on 30-5-1992, where after the case was adjourned for producing some documents in evidence.
5. It was on 13-7-1992 that the petitioner/defendant filed an application under Order 6, rule 17, C.P.C.
Seeking to amend rather substitute the written statement filed by him. That application was rejected by the trial Court which came to the conclusion that the amendment prayed for could not be allowed as it would run counter to the plea of adverse possession already taken and under the guise of amendment a new case was being set up by the petitioner which could not be done. This order of the trial Court has been challenged by the petitioner in this petition.
6. Mr. Habibul Wahhabul Elkheiri, learned counsel for the petitioner has contended with vehemence that the trial Court has acted illegally in disallowing the amendment application which was liable to be accepted in view of the law declared by the Supreme Court in Mst. Ghulam Bibi and others v.
Sarsa Khan and others PLD 1985 SC 345. According to the learned counsel the pleas sought to be raised by way of amendment were not contradictory or inconsistent with the stand taken in the written statement but were in its amplification. It was emphasised that in view of the facts stated in the application for amendment the suit of the respondents was not maintainable.
7. Mirza Anwar Baig, AdvOcate appearing on behalf of the respondents has raised a preliminary objection as to the maintainability of this petition on the ground of non-joinder of necessary parties by arguing that the petitioner has failed to implead the other defendants as parties to this petition. The learned counsel has further urged that the pleas sought to be incorporated in the written statement by way of amendment were contradictory to the stand already taken in the written statement and as such cannot be allowed. He relied upon Mt. Kanta Devi v. Sm. Kalawati and others AIR (33) 1946 Lah. 419 and The Municipal Corporation of Greater Bombay v. Lala Pancham and others AIR 1965 SC 1008 in support of his assertion that fraud cannot be pleaded by way of amendment.
8. Having heard the learned counsel for the parties at length and perused the available record, I am of the view that the order passed by the trial Court does not call for interference by this Court in the exercise of its revisional jurisdiction. It is true and indeed there can be no cavil that in view of the pronouncement of the Supreme Court in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 the Courts should be liberal in permitting amendment of the pleadings and all amendments which are necessary for determining the real matter in controversy must be allowed.
But it is equally well-settled that the application for amendment must be bona fide and that the defence already set up in a written statement cannot be allowed to be totally substituted nor can its nature be changed. Unfortunately, in the present case the application for amendment can neither be considered to be bona fide nor can it be held that the pleas being raised by way of amendment are not contradictory to the defence already taken. The earliest judgment on the question is Kanda and others v. Waghu PLD 1949 PC 270 wherein it was observed that though the power of amendment conferred on the Courts are very wide but they must be exercised in accordance with the legal principle and an amendment would not be allowed which would involve setting up of a new case. Same principle was reiterated in Mst. Khudeja v. Jehangir Khan and 37 others 1991 SCMR 395. Reference may also be made to a judgment of this Court in Gulab and another v. Fazal Elahi PLD 1955 Lah. 26 wherein S.A. Rehman, C.J. (as his lordship then was) was pleased to observe that amendment which would displace the plaintiffs' suit or would introduce a new and wholly inconsistent case must not be allowed despite the fact that the powers of the trial Court to allow amendment at any stage are fairly wide.
9. One of the grounds on which the application for amendment is based is that the earlier written statement was in English language which was not understood by the petitioner and, therefore, he be permitted to file a written statement in Urdu. In this behalf reference has been made by the learned counsel to section 137, C.P.C. Which only enables the parties to ask for translation in Urdu but does not permit them to file an amended written statement. It is noteworthy that the written statement bears the petitioner's signatures in English. Anyhow, the petitioner having himself submitted written statement in English through a counsel cannot legitimately claim any prejudice.
Be that as it may, it is too late in the day after having filed written statement and led evidence to ask for substitution of written statement on this ground.
10. The main thrust of the argument of the learned counsel for the .Petitioner was that the respondents have procured the transfer of the land under the Khokha from the Rawalpindi Improvement Trust through fraud and misrepresentation. This clearly amounts to setting up a new case and runs counter to the original written statement in which the petitioner's case was that he was not in occupation of Property bearing No,A-98 belonging to the respondents but was occupying a part of non-evacuee property bearing No,A-99 owned by Muhammad Hussain. That being so it is not open to the petitioner to raise the plea of fraud and misrepresentation for the first time by seeking amendment of written statement. A Division Bench of this Court in Mt. Kanta Devi v.
Sm. Kalawati and others AIR 1946 Lah. 419 laid down that the Courts are not only reluctant but averse to permitting a party to amend his pleadings to substitute a new and a distinct kind of fraud, what to say of introducing a plea of fraud for the first time when it had never been pleaded before. The other' case cited by the respondents' learned counsel from Indian jurisdiction namely The Municipal Corporation of Greater Bombay v. Lala Pancham and others AIR 1965 SC 1008 takes the same view. Again in N. Muniswa mi Mudaliar v. R. Raja Gopala Mudaliar AIR 1928 Madras 759 it was held that amendment will not be generally allowed for the purpose of adding a plea of fraud, except where strong grounds exist. Furthermore, in law the petitioner cannot challenge the transfer by Rawalpindi Improvement Trust in favour of the respondents which is essentially a matter between them and the Trust.
11. The learned counsel for the petitioner also argued that Suit No,663/86 bearing the title Nadeem Afzal etc. v. Mumtaz Anwar etc. Filed by the respondents against the father of the petitioner was decided on the basis of the statement of the parties and that in that suit the respondents' attorney made a statement on 23-7-1987 that the respondents have no concern with the Khokha. In his submission, the respondents deliberately concealed this fact and practised fraud on Court. It is to be noticed that after recording the statement of the respondents' Attorney, the learned trial Court did not pass any final order but adjourned the case. In the meanwhile, an application was moved by the learned counsel for the respondents for clarification of the statement of their attorney, that the said admission was only for the purpose of that suit as the Khokha was not subject-matter of that suit. The learned Civil Judge allowed that application by holding that the Khokha was not in dispute in the suit, in which the disputed land was situated in Khasra No,924 and that the Khokha was on Nazool land bearing Khasra No,903. It was maintained that as Rawalpindi Improvement Trust was not a party to the suit, no order could be passed in respect thereto and the parties would be at liberty to file a separate suit with regard to the land under the Khokha. With this clarification the suit of the respondents was decreed on 7-9-1987 under Order 12, rule 6. C.P.C. In respect of the land other than the Nazool land located at the back of the Khokha. According to the petitioner's own showing the judgment and decree of the trial Court were upheld by the Appellate Court, with which in revision this Court also did not interfere. Unfortunately, the learned counsel while seeking amendment in the written statement on the basis of the statement made by the respondents' attorney did not advert to the subsequent order passed by the trial Court which makes it abundantly clear that the Khokha was not in dispute in that suit and that the parties were left to have their rights in respect thereof decided in a separate suit, if need be.
12. As already observed, an application was moved after the parties had led their evidence in entirety except that the petitioner had to produce certain documents. The record is replete with documents which show that the petitioner's predecessor had never disputed the title of the respondents to the property in dispute and considered it as part of Property bearing No,A-98. As already stated, in the written statement, reference has been made to Rent Controller's order dated 15-4-1980 passed in the ejectment case and also order passed in appeal. But important document in this respect is the written statement Exh.P.28 filed by Muhammad Aslam in the said ejectment petition brought by Muhammad Hussain against him in which he categorically denied the title of Muhammad Hussain to the property in dispute and stated that he was in possession of Property bearing No,A-98 as tenant under the respondents. The same was his stand in the memorandum of appeal, Exh.P.31. It is ironical that now his successor is pleading by way of amendment and trying to set up title of Muhammad Hussain to the property in question.
13. It is noteworthy that under the decree aforesaid the controversy regarding the land located at the back of the Khokha stands adjudicated and the same has been held to be a part of Property No,A-98 owned by the respondents. According to the Resolution No,2 dated 30-4-1970 (Exh.P.7) of the Rawalpindi Improvement Trust, only the persons whose properties lie on front of the Nazool land are entitled to purchase it. As the land under the Khokha located in front of Property No,A-98 belonging to the respondents it could only have been transferred to them and as such there is no basis for claiming that the same was transferred to Muhammad Hussain, the owner of adjoining Property No,A-99.
14. It is also discernible from the record that earlier Mst. Mumtaz Anwar, one of the legal heir of Muhammad Hussain moved an application on 14-3-1990 under Order 1, rule 10, C.P.C. For being impleaded as a party to the suit. That application was, however, rejected by the trial Court on 24- 6-1990 by observing that Muhammad Hussain Ivas owner of Property No,A-99 and had nothing to do with the property in dispute in the suit. The aforesaid order was challenged in revision before the learned District Judge which was also dismissed.
15. There is no merit in the contention raised by the petitioner's learned counsel that the facts which are sought to be pleaded by him by way of amendment were not in his knowledge or notice. This plea is belied by the statement made by the petitioner as a witness as also the cross-examination of one of the respondents which clearly show that the facts now sought to be pleaded were known at that time to the petitioner.
16. As already observed, in the written statement only two pleas were raised by the petitioner; firstly, that the property in his occupation dues not belong to the respondents but forms part of the property owned by Muhammad Hussain and secondly that the petitioner is in adverse possession of the property. Now under the amendment another plea intended to be got incorporated in the written statement is that Muhammad Hussain deceased made an oral gift to the petitioner of the land under the Khokha and the site in his possession. This plea is in conflict with the plea of adverse possession and also amounts to making out a new case and altogether altering of the defence taken in the written statement.
17. There is also merit in the contention raised by the learned counsel for the respondents that the amendment is not bona fide. It has already been observed that the facts which the petitioner wanted to plead were well within his knowledge earlier but were not pleaded. The application appears to have been filed merely to malign the 'respondents rather than to advance the case of the petitioner.
18. In the application for amendment it has also been pleaded by the petitioner that in Suit No,663/88 respondents got issued a warrant against his father who had died. This assertion is refuted by the learned counsel for the respondents but even otherwise in my opinion it does not furnish a valid basis for amendment, for the reason that it is not germane to the real question in controversy between the parties, within the meaning of Order 6, rule 17, C.P.C.
19. As regards the preliminary objection raised by the learned counsel for the respondents as to the maintainability of this petition on the premises that the other defendants had not been pleaded as parties by the petitioner, I do not fad any force in it as on the facts and in the circumstances of the case, the other legal heirs of Muhammad Aslam deceased-defendant apart from the petitioner appear to be pro forma parties inasmuch as the respondents/plaintiffs in para. 1 of their plaint had clearly pleaded that the petitioner alone was in possession of the disputed property. This fact was not denied in the written statement filed by him. Moreover, the other legal heirs of Muhammad Aslam who were impleaded as defendants were duly served but they have chosen not to appear before the trial Court, much less to contest the suit and have been proceeded against ex parte.
This shows their complete lack of interest in the dispute. They are consequently neither necessary nor proper parties to the suit and it was, therefore, not necessary to implead them as parties to the revision.
20. For the reasons aforesaid this petition is found to be without any force. It is dismissed with costs.
It has also been noticed that the suit filed as far back as about more than 6 years ago has not yet been decided by the trial Court. In these circumstances, a direction shall issue to the Court trying the suit to dispose it of finally within three months from today.