' RANA BHAGWAN DAS, J.---This judgment shall dispose of the aforesaid two appeals directed against the identical orders passed in Suits Nos.789 of 1985 and 790 of 1985 both, dated 15-2-1989 recorded by the learned Single Judge disallowing the prayer for amendment of plaint seeking amendment in the prayer clause as under:-- ' In the alternative this Honourable Court be pleased to pass decree for Rs,7,00,000 against the defendant in the ordinary manner."
' Only difference in the prayer clause in the connected suit is in respect of the amount which is for Rs,4,00,000.
2. Appellant filed two suits under Order XXXVII, rule. 2, C.P.C., on the strength of promissory notes executed in both cases by the respondent, on the averments that in the month of August, 1982, respondent approached him and requested to give him a friendly loan of the amount in the suit.
Appellant having acceded to the respondent's request had given him a friendly loan of Rs,7,00,000 and Rs,4,00,000 respectively on or before 25-8-1982. It was Averred that in consideration of having received the aforesaid sums from the Appellant, the respondent had executed promissory notes by way of security on 25th August, 1982 in his favour with firm undertaking that the respondent would repay the loan. It was the case of the appellant before the learned Single Judge that after the receipt of aforesaid friendly loan, respondent was called upon to repay the loan amount but despite repeated promises from time to time, to did not pay a single penny towards the repayment of the loan hence the suit or recovery of the amount under summary chapter.
3. Respondent in each of the suit moved application for leave to defend, which was granted after a great deal of time. After the settlement of issues evidence of appellant was recorded before the learned Single Judge when it transpired that no amount in cash in fact had been passed on to the respondent and the pro-note was executed during the course of business dealing between the parties. Appellant at this stage moved an application for amendment in the prayer clause, which was declined by the learned Single Judge through identical orders which have been impugned in the present appeals.
4. Mr. Mansoorul Arfin, learned counsel for the appellants contended that indeed the amendment asked for was in the nature of alternative plea as the appellant in the plaint had specifically pleaded that parties were known to each other for the last many years as they had business dealings. He submitted that in case the appellant was found not entitled to decree on the strength of the promissory note under the summary procedure, the suit could be tried as an ordinary suit and the relief granted to the appellant. According to the learned counsel, the proposed amendment neither changed the complextion of the suit nor did it introduce a new cause of action and inconsistent plea.
5. On the other hand Mr. Muhammad Sharif, learned counsel for the respondent seriously and vigorously controverted the pleas advanced on behalf of the appellant and contended that while a party may in law be entitled to raise an alternate plea in support of his claim, no party is, entitled to agitate inconsistent plea and more particularly a mutual destructive and inconsistent case. He further submitted that for the purpose of allowing amendment of pleadings, bona fides of the party must be established and in the present case appellant having failed to establish his case on the basis of a negotiable instrument had either filed the suit mala fide or the proposed amendment itself was not asked for bona fide.
6. Learned counsel for the appellant relied upon the following cases in support of his submission:-
(i) K.M. Munir v Rashid Ahmed (PLD 1964 (W.P.) Kar. 172);
(ii) K.M. Munir v. Rashid Ahmed (PLD 1963 Kar. 905);
(iii) Abdus Samad v. Faqir Mia (PLD 1967 Dacca 509);
(iv) Mohiuddin v. Jamila Bibi (PLJ 1973 Kar. 63);
(v) Ghulam Ali v. Pakistan (PLD 1960 Kar. 581);
(vi) Karamat v. Mohammad Younis (PLD 1963 SC 191);
(vii) National Shipping Corporation v. A.R. Siddik (1974 SCMR 131); (viii)Saint John Ambulance v. Pak Red Cross Society (1985 CLC 2146); (ix) Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345);
7. In K.M. Munir's case (supra) authored by late Wahiduddin Ahmed (0 he then was) it was held that it is open in law to a plaintiff in cases where is respect of an original liability to pay a certain sum of money, a document such as pro-note etc. Is found in admissiable, to base the claim on original consideration and allowing amendment for the purpose, does not amount to a substitution of a distinction cause of action nor does it in the least-change or alter the nature of the suit.
8. Case at Serial No, 11 (supra) is in fact a reference under Rule 10 of Sindh Chief Court Rules (O.S.) in which two questions were referred for decision to the Division Bench namely (i) Can the plaintiff sue on the original cause of action when it was replaced by an inadmissible pro-note? (ii) Is there any cause of action independent of the pro-note?
9. In Abdus Samad's case a Division Bench of Dacca in Second Appeal propounded the question of law as under:-- ' "There is also no manner of doubt that plaintiff's case is that the promissory note was collateral security to safeguard the payment of the money. Plaintiff's whole case is based on money had, and received by the defendant whom the latter had undertaken to pay back. Therefore, even if the promissory note cannot be the basis of plaintiff's claim, we fail to see why he would not be allowed to prove the alternative case which he had made out, namely, a breach of an undertaking given by the defendant to return the money which he had received from the plaintiff. This is a grievance which is independent of the promissory note although it is backed by the same as a security. In these circumstances, we think that the best thing to do would be to allow the plaintiff to amend his plaint."
10. In Mohiuddin's case late Noorul Arfin, J., (as he then was) observed that the correct rule is that section 118(a) raises a presumption in respect of a consideration, which is a valid consideration in law, and not necessarily in favour of a consideration which is stated in the Negotiable Instrument itself. However, if the consideration stated in the instrument turns out to be undue and some other form of consideration is proved at the trial, either by way of admission in pleadings, or in the evidence of the holder of the instrument, or through some other evidence, then this inconsistency between the forms of consideration should be viewed in the context of the other evidence, which comes before the Court for the purpose of coming to the conclusion whether the defendant has discharged the burden laid upon him with regard to the presumption of consideration under section 118 of the Negotiable Instruments Act.
11. In Ghulam Ali's case it was held that introducing new ground for claim does not change a cause of action.
12. In Karamat's case (supra) the Hon'ble Supreme Court allowed the plaintiff to amend the plaint at the stage of appeal seeking relief of possession which was not asked for in the plaint and had become barred in the meantime taking view that nature of the suit was not altered by addition of this prayer.
13. In National Shipping's case (supra) the claim for damages on account of loss of damage to goods due to enemy action was allowed to be amended on the rule of law contained in Order II, C.P.C., expressing the view that the Courts have always inclined to allow leave liberally to enable the patties to bring all points before it so as to avoid multiplicity of proceedings.
14. In the case of Saint John Ambulance (supra) Ibadat Yar Khan, J (as he then was) after a resume of the case-law from Pakistan as well as Indian High Courts laid down that new plea by way of amendment could be complementary of contradictory. While complementary and alternative plea would be permissible contradictory or mutually destructive pleas could not be permitted to be incorporated at a subsequent stage.
15. In the case of Ghulam Ali (supra) the Supreme Court expressed the view that cause of action, if does not change main substance of suit and nature of suit, would not change and if that does not change question of limitation would then remain only of form and not of substance. Amendment in the plaint, therefore, is permissible if otherwise necessary, notwithstanding possibility that on account of some formal change, question of limitation might have acquired pronounced importance had it not been a case of amendment. Apex Court further held that rules of procedure were meant to advance justice and to preserve rights of litigants and they were not meant to entrap them into blind corner so as to frustrate the purpose of law and justice.
16. Conversely, learned counsel for the respondent relied upon the following cases:--
(i) Budho v. Ghulam Shah (PLD 1963 SC 553).
(ii) K.M. Muneer v. Rashid Ahmed (PLD 1964 Kar. 172).
(iii) Para. 14 of case reported in Saint John Ambulance v. Pak Red Cross 'Society (1985 CLC 2146 also reported in 1985 CLC 2146.
(iv) Ghulam Abbas v. Chief Administrator Okaf (1981 SCMR 753).
(v) Mohammad Iqbal v. Muhammad Ramzan (PLD 1987 Azad J&K 170).
(vi) National Fertilizer Marketing Ltd. v. -Secretary Local Government (1992 MLD 1203).
17. In Budho's case (supra) a Full Bench of the Hon'ble Supreme Court expressed the view that "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 set to be inconsistent with each other if both could have happened. The test of inconsistency between two facts would be that a plaint which contain 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 statement of fact 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 forwards more than one source of his title he is not taking up inconsistent position. He is only pleading in the alternative".
' The view expressed in K.M. Muneer's case has already been reproduced and does not call for reiteration.
18. Para. 14 of the case reported in Saint Joan's case is an extract from the case of Allauddin v. Mst.
Farkhunda (PLD 1953 Lah. 131) illustrating the pleadings and expressing the view that anybody can verify these facts with the strictest regard for truth. Many other cases of apparently inconsistent pleas will, when analysed yield similar results. The Court concluded by laying down the rule that inconsistency is only in the legal conceptions, not in the facts stated.
19. In the case of Ghulam Abbas (supra) the Hon'ble Supreme Court declined leave to appeal in a case where the petitioner sought permission to raise altogether new and inconsistent pleas which were refused by the two Courts below.
20. In Mohammad Iqbal's case (supra) the High Court of Azad Jammu and Kashmir expressed the view that if in suit for pre-emption a plaintiff wants to amend his plaint in order that he may be able to plead that he had a superior right of pre-emption while in the original complaint his plea was not to that effect, the Court will be slow to allow amendment unless the omission in the first instance was either accidental or due to a slip of pen.
21. In the last case i,e, National Fertilizer v. Secretary Local Government., a learned Single Judge of the Lahore High Court took the view that the amendment could not be allowed where it would tantamount to permitting the petitioner to set up altogether new case inconsistent with earlier stand taken in the main petition.
22. A resume of the case-law referred to hereinabove leads to the conclusion that an amendment will generally be allowed where the nature of the suit is not altered ,unless it prejudices or takes the opposite party by surprise. It further appears that an amendment may be allowed even if it introduces a new grounds of claim or an allegation of fact inconsistent with the original pleadings where the Court thinks it just and necessary. As a general rule an amendment which changes the character of the suit will not be allowed by the Court in the exercise of its discretion. Furthermore, the Court has no power to allow an amendment which substitutes one distinct cause of action for another or which materially changes the subject-matter of the suit.. Conversely it would appear that the object of the law being to try the merits of the suit and to do substantial justice between the parties an amendment may not be allowed which will work injustice to one of the parties. The rule of conduct of the Court remains that, however, negligent or careless the first omission may have been, and however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. The rule, however, is not of universal application and rigid or static in itself. In the peculiar circumstances an amendment may be allowed even where it has the effect of depriving the defendant of his right to plead limitation or any other legal bar. Wide power of the Court to allow the amendment cannot be disputed and though such a power should not as a rule be exercised where it has the effect of prejudicing the defence of the opposite party or it takes away from the defendant a legal right which has accrued to him by lapse of time, there are cases where such considerations are outweighed by the special circumstances of the case, it is no doubt true that an amendment may be refused when the application is not made in good faith. Therefore, as a general rule leave to amend ought not to be refused if the applicant has acted bona fide. It will be refused where he has been acting mala fide. However, where a claim to which the plaintiff may be entitled was left out by bona fide mistake or by inadvertence or on a misapprehension of facts and amendment should be permitted by adding the claim so left out. In cases where the omission is deliberate leave to amend ought to be refused.
The same principles as are available to cases of amendment by adding new reliefs, apply to amendments by adding new grounds of reliefs. Thus, a new ground in support of the relief claimed cannot be said to alter the character of the suit and will as a general rule be allowed. The main object in allowing amendments appears to be to get the rights of the parties and to avoid multiplicity of the suit where the dispute can be settled in the suit already instituted without unfairness to the other side. Necessity to amend the prayer clause may arise in a set of circumstances where leave to amend may be liberally granted at any stage in proceedings in order to determine the real question at issue between the parties unless the party applying for leave has acted in bad faith.
23. It is true that in both the suits the respective plaintiffs had claimed that the defendant had approached them in August, 1982 for grant of a friendly loan and upon the request having been acceded to, he executed promissory notes in favour of appellant Zahoor Ahmed (plaintiff in Suit No,789 of 1985) and Malik Muhammad Yaqoob (plaintiff in Suit No,790 of 1985) for Rs,700,000 and 400,000. In evidence, however, Zahoor Ahmed deposed about previous business dealings with the respondent/defendant and stated that the latter owed him an amount of Rs,1,10,000. He demanded such amount in June, July and August, 1982 whereupon the respondent stated that he had no money but executed the two promissory notes, dated 25-8-1982, one in his favour for Rs,700,000 and the other in favour of his brother-in-law Malik Muhammad Yaqoob, to whom the (Zahoor Ahmed) owed money, for Rs,400,000.
24. Mr. Muhammad Sharif, learned counsel for the respondent, contended that the evidence led in both the suits was patently inconsistent with the case setup in the respective plaint in both suits, inasmuch as while both the plaintiff speak bf a specific amount, being disbursed as friendly loan and prdmissory notes for such amounts having been executed by the respondent, the case set up in evidence was founded upon money payable on account of past business contract. This device, accordingly to Mr. Sharif, was applied to circumvent the bar of limitation which had attached to a suit founded upon the original consideration. By amending the plaint the appellants wished to avail another opportunity of leading evidence and obtain a decree on a claim to which limitation had already attached. Therefore, the request for amendment was rightly refused.
25. Indeed there may be some inconsistency between original pleading and the evidence on record, but the fact remains that no inconsistency is sought to be introduced through the proposed amendments. No amendments have been sought in paras. 2 and 3 of the plaints and only the prayer clause is proposed to be amended to enable the Court to pass decree in the ordinary manner. Such relief in our view cannot be refused as the plaintiff can always fall back upon the original debt if relief cannot be granted on the basis of a negotiable instruments under Order 37.
Even otherwise, once leave to defend is granted the procedure in ordinary suits has to be followed as contemplated by order 37, Rule 7. The respondent can always rely upon any inconsistency between pleadings and evidence or raise the question of limitation at the trial.
25. For the aforesaid facts and reasons, with utmost respects to the learned Single Judge and due deference for the view expressed we are constrained to recall the impugned order and allow the appeals with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.