' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, with leave of the Court, has been directed against the order of the High Court, dated 20-9-1999, whereby the revision petition filed by the appellant, herein, was dismissed and order of the Trial Court whereby amendment was refused was maintained.
2. The brief facts of the case are that the appellant filed a declaratory suit with the consequential relief of possession alleging that a gift deed of land measuring 1 Kanal, 5 Matlas, was got executed by the defendant-respondent fraudulently; in fact he had purchased the land for the consideration of rupees one lac but instead of getting a sale-deed registered, he got executed a gift deed in his favour which was illegal and he also refused to pay the consideration amount as he had promised.
Subsequently, he filed an amendment application on 1-3-1999 seeking the cancellation of the sale- deed affidavit on the ground that the respondent had got executed the aforesaid document for consideration of rupees one lac; he paid only Rs,60,000 and Rs,40,000 were still had to be paid; thereafter, instead of sale-deed, he got a gift deed executed in his favour. It is further alleged by the plaintiff-appellant that afterwards the defendant-respondents started claiming that he had purchased 2 Kanals 10 Marlas of land on the basis of the aforesaid two documents i,e,, gift deed and affidavit/sale-deed. The Trial Court dismissed the amendment application holding that the same would change the nature of the suit. The revision petition filed by the appellant to the High Court was also dismissed observing that amendment would not only change the complexion of the suit but would also change its cause of action.
3. Mr. Muhammad Riaz Inqilabi, the learned counsel for the appellant, has submitted that the amendments which the plaintiff-appellant seeks to make is only an elucidation of the facts already alleged in the plaint i,e,, that in fact the respondent purchased the land measuring 1 Kanal 5 Marlas, but subsequent he fraudulently got executed a gift deed in his favour. The learned counsel has argued that the aforesaid amendment does not change the complexion of the suit because the relief sought by the plaintiff-appellant is for the cancellation of the gift deed which remains the same. He has argued that at the most an additional ground is sought to be introduced by way of amendment, which does not change the complexion of the suit. The learned counsel for the appellant has further argued that the facts which the plaintiff wants to introduce by way of the amendment were not incorporated in the plaint despite the fact that the counsel for the plaintiff was instructed to do so at the relevant time. He has submitted that plaintiff-appellant should not suffer for the indifference of his counsel. He has cited the following authorities in support of his contentions:--- ' In a case reported as Chaudhry Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja (PLD 1994 Lah.252), the amendment in the application for ejectment in a dispute under the Cantonment Rent Restriction Act, 1963 was allowed on the ground of faulty drafting by the counsel for the applicant.
' In a case reported as Muhammad Akram and 2 others v. Muhammad Ashraf and 5 others (1998 CLC 555), it has been observed that mere seeking different relief on the basis of same facts would not change the cause of action or the character of the suit. It was held that as cause of action of the suit remains unchanged it could not be said that complexion of the suit would become different.
' In a case reported as Semco Salvage (Pvt.) Limited v. m.v. Kaptain Yusuf Kalavan and another (1993 SCMR 593), it has been held that amendment can be allowed at any stage. It was further observed that as the amendment sought did not change the nature of the suit and was directly connected with the cause of action, the same was rightly allowed.
' In a case reported as Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, it has been observed that mere delay is no ground for refusing an amendment. It has been held that while considering the question of amendment technicalities should be avoided as far as possible and that an amendment can be allowed even after the expiry of period of limitation prescribed, if it is necessary for resolving real controversy between the parties. The question as to what would constitute a different cause of action was also discussed in light of relevant provisions of C .P.0 .
4. In reply Mr. Muhammad Yunus Tahir, the learned counsel for the respondent, has argued that the plaintiff-appellant seeks to introduce the facts for assailing the affidavit which, according to him, was a sale-deed. He has argued that according to the amendment application the plaintiff seeks to challenge the affidavit/sale-deed in the present suit which was not the subject-matter of the suit already instituted. He has further submitted that according to the case of the appellant he had only gifted or sold property to the tune of 1 Kanal, 5 Marlas, and not to the tune of 2 Kanals and 5 Marlas, as was now contended by the defendant-respondent. The learned counsel for the respondent has further argued that if at all the counsel for the plaintiff- appellant did not incorporate the said facts in the plaint despite instructions, the remedy must be sought against the counsel but amendment cannot be allowed on that ground. He has cited a case reported as Raja Feroz Khan v. Asghar Khan and others 1992 SCR 363, in support of his contention that negligence of counsel was no ground to allow amendment.
5. We have given due consideration to the arguments raised at the Bar. It may be pointed out that the question as to whether amendment sought, if allowed, would change the cause of action or complexion of a suit depends upon the circumstances of each case. In the instant case, it cannot be said that as the plaintiff-appellant seeks to annul the gift deed, the facts which he intends to introduce by way of an amendment would not change the complexion of the suit because the same are merely for elucidating the case originally set up in the plaint. The perusal of the contents of the plaint originally framed and the amendment application clearly shows that the facts which the plaintiff-appellant seeks to introduce by way of an amendment are tantamount to introduce altogether a different case from one which he had initially set up in his plaint. It may be stated that the comparison of the contents of the plaint filed by the plaintiff-appellant and the application of amendment would reveal that the plaintiff-appellant seeks to introduce facts by way of amendment which are in fact in consistent with the facts mentioned in the original plaint. In the plaint he has averred that he sold 1 Kanal, 5 Marlas of land for a consideration of rupees one lac and he was made to believe by the defendant that he would pay the said amount of Rs, one lac after the registration of the gift deed. But nothing was paid to him as was promised. However, in the amendment application he has averred that in fact sale-deed/affidavit was executed regarding land measuring 2 Kanals, 10 Marlas for a consideration of rupees one lac, out of which Rs,60,000 were paid to him through some one and an amount of Rs,40,000 was still outstanding against the respondent. According to the amendment application, the plaintiff not only seeks the declaration regarding the gift deed in question but also in respect of affidavit/sale-deed that the same were null and void against his interests. The case of the respondent-done is that no sale-deed/affidavit was executed in his favour and only land measuring 1 Kanal, 5 Marlas was transferred by him by way of gift; in other words defendant-respondent does not claim any interest on the basis of any affidavit/sale-deed which was allegedly executed in his favour. Thus, the present amendment application is a device to support the plea of the plaintiff that a fraud was committed on him while getting the execution of gift-deed. It may be pointed out here that the so-called sale- deed/affidavit does not find any mention in the plaint as originally framed. It is well-settled principle of law that any documentary evidence is to be produced before first hearing of the suit or the same must be included in the list of the documents which a party intends to produce in evidence to support his plea. In the instant case, the plaintiff not only wants to introduce altogether a different case but he seeks to bring on record the sale-deed/affidavit which is of doubtful authenticity. Thus, we are of the view that the order passed by the Trial. Court and confirmed by the High Court refusing amendment to the plaintiff-appellant does not suffer from any legal infirmity.
' Hence, the appeal is hereby dismissed with costs.