This Constitutional petition is directed against the order, dated 22-2-1978, of Civil Judge, Narowal whereby the respondents-defendants' application for the amendment of the written statement was allowed and also against the order, dated 8-1-1979, of District Judge, Sialkot whereby the petitioners' revision petition was disallowed.
2. The relevant facts are that the predecessor-in-interest of the present petitioners, Mian Muhammad A.I filed a suit for specific performance of contract against one Mirza Itfaq Baig (the predecessor-in-interest of respondents Nos.2 to 9). The respondents Nos. l and 10 to 12 claimed to have purchased the part of the suit land from the abovesaid Mirza Itfaq Baig, thus they were also impleaded as the defendants. Mian Muhammad A.I died during the pendency of this petition and his legal representatives have been impleaded as petitioners. Out of the pleadings of the parties the issues were framed and the evidence was recorded by the trial Court. Thereafter on 11-2-1978 the defendants moved an application for the amendment of the written statement to be able to raise an objection to the effect that under the provisions of section 69 of the Partnership Act the suit was not maintainable. The petitioner contested the application for amendment as being unnecessary and unwarranted by law. As mentioned above this application was allowed by the trial Court vide order, dated 22-2-1978, and the petitioners' revision petition was dismissed on 8-1- 1979.
3. I have heard the learned counsel for the petitioners and learned counsel for respondents Nos. l and 12. The other respondents have not turned up despite their service. They are proceeded ex parte.
4. It is contended by the learned counsel for the petitioners that it is evident from the record that agreement had been entered into by the plaintiff in his personal capacity with Mirza Itfaq Baig and.
Therefore, the provisions of section 69 of the Partnership Act were not attracted and the defendants' application for amendment of the written statement was misconceived. The learned counsel has also today produced copies of Exh. P-1 to Exh.P-4, the agreements, which have been placed on the record of this petition. In support of his contention, the learned counsel relies on Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore 1977 SCMR 284, m.v. Kaptan Yousuf Kalkavan v. Semco Salvage Pvt. Ltd. (1992 CLC 143) and Mistri Muhammad Ramzan v. Noor Muhammad and 2 others (PLD 1995 Quetta 5). It has also been contended by the learned counsel for the petitioner that the application for amendment was moved at a very late stage after the evidence of the parties had been recorded. With mala fide intention just to delay the decision of the suit.
5.On the other hand, the learned counsel appearing for the respondents has submitted that the respondents/defendants' application for the amendment of the written statement did not change the nature of the suit and was not without any basis. In this regard reference is made to a portion of Exh.P-1, the agreement dated 7-5-1968 wherein there is a mention that the part of the suit land was given by the deceased defendant Mirza Itfaq Baig to obtain partnership in Muhammad A.I & Company of which the plaintiff was .One of the partners. The learned counsel for the respondents has placed reliance on Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), to contend that delay alone in applying for amendment could not be a ground for refusing amendment and that the amendment in the pleadings can be allowed at any stage of proceedings including appellate stage up to the supreme Court, as may be necessary for purpose of determining the real question in controversy. It is also contended by the learned counsel for the respondents that the Court can interfere in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 only if the orders of the Courts below are coram non judice or void and the jurisdiction under this article will not be made available simply on procedural matters or on the plea of propriety because the alternate remedy of ultimate appeal will be available to the party aggrieved of such an order of the trial Court.
Reliance in this regard is placed on Dr. Sajjad Ahmad and another v. Dr. Muhammad Bashir and 10 others (PLD 1979 Lah. 304), Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322) and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970).
5. The trial Court allowed the amendment holding that the proposed amendment is merely legal.
The revisional Court held that there was no illegality` or material irregularity in the order of the trial Court and same did not require any interference.
6. It is not a case of an amendment of a plaint whereby the nature of the suit is being changed. It is merely a case of the amendment of the written statement whereunder the defendants have been allowed to raise a legal objection available to them under the facts of the case and under the law.
The authorities cited by the learned counsel for the petitioners are of no avail to him and are distinguishable on facts also. In Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore (supra) it has in fact been held by the Hon'ble Supreme. Court that there is a long line of judicial Authorities laying down that amendment should be allowed liberally except when it causes injury to the opposite side. In the instant case the learned counsel has failed to show any injury which is likely to be caused to the plaintiff if the proposed amendment in the written statement is allowed to be made. The authority cited by the learned counsel for the petitioner, Mistri Muhammad Ramzan v. Noor Muhammad and 2 others (PLD 1995 Quetta 5) is not relevant as in the said case the order allowing amendment of plaint was set aside by the High Court because the proposed amendment would convert the suit, into another suit of a different and inconsistent character whereas in the instant case the nature of the suit is not being changed.
Similarly in m.v. Kaptan Yousuf Kalkavan v. Semco Salvage Pvt. Ltd. (supra) the amendment was disallowed as it was held that apart from putting up a new case, it would also amount to changing cause of action of suit which would be detrimental to the interests of the defendant.
7. The delay itself is no ground for disallowing the amendment of the pleading and through the amendment of the written statement, the nature of the suit is not being changed and the orders of the Courts below do not suffer from any illegality because through the amendment in the written statement the defendant has been allowed to take only a legal objection in regard to the maintainability of the suit.
8. In view of the abovementioned, this petition having no merit is dismissed with no orders as to costs.