2. Brief facts of the case are that respondents Nos.3 to 10 plaintiffs filed a suit for declaration which is pending adjudication in the Civil Court, Arifwala, wherein defendants filed their written statement on 22-3-1994 and subsequently on her death pursuant to the amended plaint, amended written statement was filed by her legal heir Bootay Khan on 1-6-1995. Evidence of the parties was recorded and only evidence of defendant No.2 was left to be recorded when an application for amendment of the written statement was submitted in the Court of learned Civil Judge on 18-2- 1997 (Annexure C with the petition) which was resisted by the respondents-plaintiffs by filing -reply thereto wherein it was asserted that no amendment could be allowed to the petitioners after such a long time for withdrawing the admission made in the written statement. It was further asserted that the proposed amendment is based on mala fide and the application is liable to be dismissed.
Learned Civil Judge after hearing the parties dismissed the application of the petitioner on 13-3- 1997 through a detailed judgment against which the revision preferred by the petitioner was also dismissed by the learned Additional District Judge Pakpattan vide impugned order.
3. Learned counsel for the petitioner submits that the petitioner was entitled to introduce the amendment even at the late stage, and has relied upon mainly on Mst. Dharan Bibi and others v.
Khushi Muhammad and others (1995 MLD 290). .
4. On the other hand learned counsel for respondents Nos.3 to 10, who has appeared in response to pre-admission notice, submits that amendment, cannot be allowed to be made so as to affect withdrawal of the admission made by the petitioner in the earlier written statement and has relied upon Secretary Govt. (West Pakistan) N.-W.F.P.. Deptt. Of Agricultural and Forests Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242) and Haji Suleman A.I Muhammad v. Ahmed A.I and another PLD 1982 Karachi 111), He also submits that the writ petition is not maintainable against the revisional order of the learned Additional District Judge in view of the dictum laid down in Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970) and Abdur Rashid alias Muhammad Rashid v. Muhammad Hanif and 2 others (1994 SCMR 2035).
5. I have heard the learned counsel for the parties and gone through the record as well as the judgment referred by the learned counsel for the parties. The above narration of facts indicates that the petitioner wants to withdraw the admission made in the written statement in mala fide manner. Learned Civil Judge as well as learned Additional District Judge have rightly observed that the proposed amendment is aimed at to get rid of the admission made in the written statement.
The proposed amendment which relates the period of alleged possession as owner of Mst. Wazir Begum over the suit property is a sort of admission in favour of respondents-plaintiffs. Judgment reported as Haji Suleman A.I Muhammad v. Ahmad A.I and another (PLD 1982 Kar. 111) clearly contemplates that petitioner cannot be allowed such an amendment hereby the admission already made is aimed at to be withdrawn. The relevant portion of the judgment at Page 114 is as under: 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.
Admission made by a party in the pleading cannot be revoked without the leave of the Court. "
6. Similarly it has been held by the Hon'ble Supreme Court in Secretary Government v. Kazi Abdul Kafil (PLD 1978 Sc 242.) that Para 10.
"The learned Additional Advocate-General however, contended that the said admission made in the written statement was factually incorrect; that in order to get rid of the same, the appellant Government had, therefore, filed in the trial Court an application under Order VI, rule 17 C.P.C.
Praying therein for the amendment of the written statement, but the same was wrongfully rejected.
I am afraid there is no force in this contention. It is well-settled that admissions made in a written statement have altogether different legal significance than admission generally. In this respect reference may be, made to Order VIII, rule 5, C.P.C. Which runs as under:- "5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
11. Now the trial Court and the High Court both have, essentially in the exercise of their discretionary jurisdiction, refused permission to the appellant Government to amend its written statement so as to enable it to withdraw the said admission. On my part, therefore, I see no reason to take a different view, as the learned Additional Advocate-General has been unable to show that the view taken by the Courts below was either per-reverse or unreasonable. In actual fact the view taken by the said two Courts would seem to be the only view which in the light of all the facts and circumstances of this case, could be taken, because (1) there is nothing in the parties contract to show as to who would be the competent authority; and (2) in the written statement filed by it, the appellant Government had not denied that the Chief Conservator was the competent Authority."
7. The judgment Mst. Dharan Bibi and others v. Khushi Muhammad and others (1995 MLD 290) relied upon by the learned counsel for the petitioner is of no help to him. Aforementioned judgment of Supreme Court (PLD 1978 SC 242) was not referred before the High Court in the said case. Moreover, the observation in Mst. Dharan Bibi's case is that admission made on account of mistake of facts could be allowed to be rectified under Order VI, Rule 17, C.P.C. But in the case in that it was not a case of rectification of any mistake it was an effort to get rid of the admission made earlier in the written statement with ulterior motive. The Courts below after perusal of the plaint and the written statement came to the conclusion that the application for amendment was neither bona fide nor it was a fit case for permission for amendment. The concurrent findings of both the Courts below are supported by the cogent reasons and record calling for no interference.
8. Now coming to the question of maintainability of the writ petition, it has specifically been held by the Hon'ble Supreme Court in Muhammad Khan and 6 others v. Mst. Ghulam Fatima (1991 SCMR 970) that revisional order arising out of civil litigation could not be challenged in a constitutional petition. In the said case petitioner application for amendment was disallowed by the trial Court and their revision petition preferred against the said order was dismissed by the District Judge which order was challenged in a Constitutional petition before High Court. The writ petition was dismissed relying upon Ghulam Hussain v. Malik Shahbaz Khan (1985 SCMR 1925), Muhammad Bakhsh v. Ghulam Hussain (1989 SCMR 443) and Muhammad Zahoor v. Lai Muhammad (1988 SCMR 322). Leave to appeal against the said order was refused by the Hon'ble Supreme Court.
9. In the light of the above judgments I am of the clear view that this writ petition is also not maintainable against the revisional order of learned Additional District Judge.
For the above reasons, this petition is dismissed in limine.