' Respondents (plaintiffs) Umar Daraz etc. Had filed a suit against the petitioner (defendant), Wareshmin etc. For declaration to the effect that they are entitled to irrigate their land bearing Khasra No,5408 measuring 85 Kanals 11 Marlas, situated in Mauza Tattah, Tehsil and District Tank through the water spring, the details of which have already been given in the heading of the plaint, that in the "Riwajat-e-Aabpashi" for the year 1966-67 no entry, whatsoever, has been made in this respect and that, therefore, the present suit was set on foot for the correction of the same.
2. The suit was contested and the pleadings of the parties were reduced to as many as nine issues.
3. After recording the evidence, which the parties wished to produce and after hearing the learned counsel for the parties, the trial Court (Civil Judge First Class, D.I. Khan Camp at Tank) vide his judgment dated 27-6-1990, in Civil Suit No,60/1 of 1986, granted a decree as prayed for the respondents (plaintiffs).
4. Dissatisfied with the verdict of the trial Court the petitioner (defendant) filed an appeal in the Court of District Judge, D.I. Khan which was later on .Transferred to the Court of District Judge Tank for disposal.
5. The appeal was still pending when in the meantime the petitioner (defendant) submitted an application before the District Judge on 23-1-1993 wherein he prayed that he be allowed to amend his written statement to the extent of taking the plea of (i) adverse possession and (ii) estoppel.
This application was contested by the respondents (plaintiffs) who filed their replication and after hearing the parties the tower appellate Court (District Judge, Tank) rejected the said application, filed by the petitioner (defendant) for the amendment of the written statement on the following ground:--
(i) That the petitioners (defendants) had already taken me plea or res judicata on the basis of the decision of a previous suit regarding the property in question and that in this respect a proper issue was framed which was decided against them by the trial Court and, therefore, there is no need to take the plea of estoppel; and
(ii) that the petitioners (defendants) did not claim the ownership of the suit spring but had taken the plea that they too are entitled to irrigate their land through the same and since the petitioners (defendants), by the permission of the Court to amend the written statement want to raise the plea of adverse possession regarding the suit spring, therefore, they want to take a different stand as compared to the stand taken by them in the written statement and as such they cannot be allowed to do so.
6. The petitioner (defendant) feeling aggrieved by the order. Of the District Judge has assailed his finding before this Court by filing this revision petition for the redress of his grievance.
7. Haji Saadullah Khan Miankhel, Advocate learned counsel for the petitioner (defendant) and Mr. Muhammad Khan Khakwani, Advocate learned counsel for the resdpondents (plaintiffs) present and heard. I have also gone through the record of the case with some degree of care.
8. It may be stated at the very outset that the only question for examination/determination in the present revision petition is as to whether, in the facts and the circumstances of the case in hand, the petitioner (defendant) should have been permitted by the lower appellate Court to amend his/their written statement so as to raise the pleas of adverse possession and estoppel.
9. The amendment of the pleadings is allowed under Order 6, Rule 17 of the Civil Procedure Code, 1908 (Act V of 1908). For the sake of convenience Rule 17 is reproduced as under:-- "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."
10. The use of the expression "at any stage of the proceedings" in suit quoted above is not without significance. The word "proceedings" has been interpreted by the Supreme Court of Pakistan 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 of Pakistan. An eminent Judge of the Hon'ble Supreme Court of Pakistan in case of Imtiaz Ahmad. v. Ghulam Ali, reported as PLD 1963 SC 382 has observed:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The idea must always be a system that gives to every person what is his."
11. It will not be out of place to mention here that with regard to the question of amendment of the pleadings, the Hon'ble Supreme Court of Pakistan has, in the recent past, adopted a liberal view as compared to the strict view of the matter in some old cases.
12. In Dino Manekji Chinoy v. Muhammad Matin PLD 1984 SC 1, it was held by the Hon'ble Supreme Court of Pakistan that a strict view "on the techincal plane, of pleadings without regard to the substance of the matter which results in defeating the ends of justice and leads to smothering genuine litigation, is not to be taken".
13. Secondly it was pointed out in case reported in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court 345 that the Supreme Court of Pakistan had been taking a liberal view for allowing the amendment of the plaint. And that this would equally apply to the amendment of the other pleadings. In this respect a reference was made to the following cases:--
(1) Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCM R 824;
(2) Ali Hussain v. Late Ali Ahmad Khan Warsi PLD 1984 SC 1;
(3) Manzoor Hussain v. Sajawat 1983 SCM R 465;
(4) Muhammad Ismail v. Muhammad Sarwar 1980 SCM R 254;
(5) Secretary to Government (West Pakistan) v. Kazi Abdul Kafil PLD 1978 SC 264;
(6) Syed Akhlaque Hussain v. WAPDA, Lahore 1977 SCM R 284;
(7) Zubeda Begum v. Wali Muhammad Khan 1974 SCM R 181;
(8) National Shipping Corporation v. A.R. Muhammad Siddik 1974 SCM R 131;
(9) Bashir Ahmad Khan v. Qaiser Ali Khan PLD 1973 SC 507;
(10) Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; and
(11) Sultan Ahmad and another v. Sahu and others 1969 SCM R 277.
13. Needless to mention that the power to permit amendment is discretionary with the Court, but the discretion is to be exercised in accordance with judicial principles which are to the following effect:--
(i) to avoid multiplicity of suit;
(ii) to advance substantial justice; and
(iii) to preserve the right of the litigants.
14. In other words, the power to amend the written statement can only be refused where the application is based on mala fides. The basic rule, no doubt, is that the defendants should not be allowed to make a new case and that the amendment of the written statement is ordinarily not to be allowed where the plaintiff has closed his evidence, however, the same can be allowed if the defendant has acted in good faith. In case the defendant is allowed to amend the written statement then the plaintiffs must also be given an opportunity to meet such an amendment i,e, by allowing them to file replication to such an amendment or even by leading further evidence, if necessary.
14. In my opinion, in the circumstances of the present case, the amendment of the written statement would preserve the rights of litigants, avoid multiplicity of proceedings and advance the interest of substantial justice.
15. Accordingly, this revision petition is accepted and the impugned judgment of the District Judge is set aside. The application submitted by the petitioners (defendants) in the lower appellate Court for the amendment of written statement is allowed, subject of coursi:\ to payment of costs of Rs,3,000 to be deposited within a period of two months.
16. The case is remanded to the trial Court\lvith the direction that after the petitioner (defendant) has filed his amended written statement, the respondents (plaintiffs) if they so desire, be allowed to file replication. Thereafter, fresh issues be framed and the parties be given an opportunity of producing evidence, if they wish to do so, in support of their cases and then to decide the case on merits in accordance with law.
17. The parties are directed to appear before the trial Court on 20-12-1995 positively for further proceedings. The office is directed to send the record to the trial Court at once.