' Petitioner herein filed a suit for declaration and permanent injunction against the respondents in the Court of Senior Civil Judge, Quetta on 7-12-1993. It was averred in the plaint that the petitioner is owner of land bearing Khatooni No,84, Khasras Nos.2056, 1756, 1734, 1572 measuring 73 rods 36 poles situated at Pechi Karez, Mauza Zandarah, Halqa Kawas, Tehsil and District Ziarat. The abovementioned property is situated in the area known as Parao Ragha. In the area Ragha there are many other shareholders.
2. In 1978, the Shamlat lands of Parao Ragha were being partitioned amongst the shareholders when the respondents objected to the said partition. Thereupon an agreement was executed between the Zamindars of Pechi Karez through petitioner and Haji Masood-ul-Hasan, Haji Malik Muhammad Hassan etc. Being the elders/notables of the land owners of Pechni Karez and between owners of Cheena Karez through their elders/notables such as Haji Muhammad Qasim, Haji Muhammad Musa etc. Since Cheena Karez was passing through Shamlat lands of Parao Ragha, thus it was agreed that the shareholders of Parao Ragha will not obstruct the Cheena Karez and further the residents of Parao Ragha will not excavate any well in their lands.
3. It has been further averred in the plaint that the said agreement was never valid nor acted upon.
The petitioner wanted to develop his lands and excavated well which was objected to to by the respondents. The petitioner got an NOC for excavation of Bowary (URDU TEXT) i,e, open surface well from District Water Committee but the respondents objected to the same and filed an appeal before Commissioner, Sibi Division. The permission regarding excavation of open surface well is pending before the Commissioner. Since the respondent objected to the development of the land, the petitioner filed the instant suit wherein it was prayed that the petitioner is owner in possession of the property in dispute and the respondents be restrained permanently from interfering in the same.
4. The respondents filed their written statements on 18-12-1993 wherein the suit filed by the petitioner was resisted and as far as execution of the agreement, dated 10-7-1978 is concerned, much emphasis was laid in the written statement that the same is still intact and binding on the plaintiff. Out of the pleadings, the following issues were framed:-- "(1) Whether the suit of plaintiff is bad for non-joinder of necessary parties?
(2) Whether it was agreed between the Zamindar of the Pechi Karez and Zamindar of Cheena Karez that the Zamindars of the Pechi Karez will not obstruct/interfere into the extension work of Nazi Tangi and will not excavate any Bauri/well on the Shamlat land vide agreement, dated 10-7- 1978?
(3) Whether the defendants Nos.1 and 2 on the instigation of defendants Nos.3 to 9 are trying to restrain the plaintiff from carrying out cultivation over the land in question? '
(4) Whether the plaintiff is entitled for the relief claimed for?
(5) Relief?"
5. The petitioner in supported of his contention produced P.W.1 Haji Mohibbullah, P.W.2 Shamsuddin, P.W.3 Toti Shah, P.W.4 Ahmad Jan, P.W.5 Marak Khan and statement of attorney for petitioner, Ehsanullah was recorded.
6. In rebuttal the respondents produced D.W.1 Sultan Muhammad, D.W.2 Amir Jan, D.W.3 Abdul Wudood, D.W.4 Muhammad Hassan, D.W.5 Abdul Salam, D.W.6 Hussain Khan and statement of Haji Muhammad Qasim was recorded for himself and as attorney for all the respondents. Mr. Hussain Khan appeared on behalf of official respondents Nos.1 and 2. After hearing the parties, the learned Senior Judge decided the case vide judgment and decree, dated 29-10-1996 and dismissed the suit of the petitioner. Being aggrieved from the same, the petitioners filed an appeal before District Judge, Quetta which was transferred to the Court of Additional District Judge, Quetta who after hearing the parties modified the decree vide judgment and decree, dated 31-12-1997 the extent that the petitioner has been declared as owner of the property, but he has been restrained from excavating the well. The learned District Judge has further observed that as far as the agreement,' dated 10-7-1978 is concerned, the petitioner is at liberty to challenge the same and till the same has not been declared as illegal, the said agreement stands binding on the petitioner; hence. This petition. Alongwith the petition an application under Order 6, Rule 17, C..P.C. Has been filed wherein amendment has been sought in the prayer clause to declare the agreement, dated 10-7-1978 null and void. Said application for amendment has been resisted by the respondents.
7. I have heard Mr. Basharatullah, Advocate for petitioner and Mr. Naeem Akhtar, Advocate for respondents.
8. Mr. Basharatullah, Advocate in support of the petition contended that though the petitioner has throughout mentioned in the plaint that the agreement, dated 10-7-1978 was unforceable against him and lacked mutuality but inadvertently has not sought nullification of the same in the prayer clause thus the petitioner may be allowed to amend the prayer clause to such extent. He further argued that the main dispute between the parties is excavation of the open surface well but the agreement, dated 10-7-1978 is an impediment in his way. Mr. Basharatullah, Advocate also pointed out that during the trial, an application was moved for appointment of Local Commissioner to show that the shareholders of the area have not abided by the terms of the agreement. The said application for appointment of Local Commissioner was rejected without any lawful basis.
9. Mr. Naeem Akhtar, Advocate for the respondents vehemently opposing the agreements of Mr. Basharatullah, Advocate contended that amendment cannot be allowed at this belated stage; moreso in exercise of revisional jurisdiction and further contended that no application was filed by the petitioner before the lower forums; though while leading evidence, the petitioner was throughout conscious of the said fact. The learned counsel further contended that allowing the relief for amended would alter the nature of the suit and a new cause of action will be included which is beyond the scope of Order 6, Rule 17, C.P.C. As far as appointment of Local Commissioner is concerned, the learned counsel contended that no appeal was filed against the dismissal of the application for appointment of Local Commissioner. Besides, no evidence was led to prove that the agreement was never acted upon by the parties.
10. Adverting to the arguments of Mr. Bashartullah, Advocate regarding amendment of the plaint in respect of declaring the agreement, dated 10-7-1978 as invalid and unenforceable against the petitioner, it may be mentioned here that through his evidence, the petitioner has asserted that the agreement, dated 10-7-1978 had become unenforceable and invalid as it was not acted upon by the parties and in Parao Ragha, the other shareholders have excavated tubewells inasmuch as in his statement before the trial Court, the attorney for the petitioner has asserted that the said agreement was cancelled and it was not abided by the parties and it has become invalid and unforceable.
11. The object of Order 6, Rule 17, C.P.C. Is that the Court may, at any stage of the proceedings, allow either party to amend his pleadings as may be just and such amendments shall be made as may be necessary for the purpose of determining the actual questions in controversy between the parties. In the case in hand, the main dispute between the parties is regarding excavation of well and petitioner has been restrained by the respondents only on the basis of said agreement whereas the petitioner through his evidence has brought on record that the agreement has become unenforceable and invalid against the petitioner as the same has not been implemented in letter and spirit by the other shareholders. The contention of Mr. Basharatullah, Advocate has substance that if the petitioner is allowed to amend the plaint and the prayer clause seeking declaration for nullification of the agreement, it would not alter the suit and the cause of action would not be changed, as it will resolve the entire dispute between the parties saving them from multiplicity of proceedings.
12. It may be pointed out that the learned District Judge, Quetta while discussing the merits of the case has referred to the agreement, dated 10-7-1978 add has also observed that the petitioner is at liberty for challenging the said agreement in a Court of law. The learned District Judge has also allowed the petitioner to challenge the validity of the said agreement by a separate suit; thus it would be in the interest of justice to curtail unnecessary litigation between the parties. Therefore, on this score also, keeping in view the observations of the District Judge, it would be appropriate to allow the petitioner to make amendment as prayed for in the application to avoid further litigation.
It may be pointed out that the superior Courts have always been liberal in allowing the parties to amend the suit; even amendments have been allowed at the stage of Hon'ble Supreme Court. In this regard reference is made to Mir Mazar v. Azeem, PLD 1993 SC 332 wherein it was observed as follows:-- "It has been ruled in recent years by the superior Courts of Pakistan that rules of procedure are meant to advance justice and to preserve right of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice as has been held in abovementioned reported case. In the instant case after suit was decreed by the trial Court, execution application was filed and possession of small portion was handed over to the appellant and against that order, appeal filed before District Magistrate was dismissed. However, appeal against judgment and decree was allowed by Majlis-e-Shoora in second appeal before High Court application was filed seeking amendment of plaint, notice of which was served on the other party but no reply was filed thereto. High Court did not pass any order on the said application but dismissed second appeal. Ends of justice demanded that amendment should have been allowed as such request could be treated at par with case of declaration under section 42 of the Specific Relief Act when consequential relief had not been sought. Amendment sought in effect is formal in nature and by allowing it, nature of the suit is not changed."
13. The petitioner to further show that the agreement was not implemented by both the parties, had filed an application for appointment of Local Commissioner only to prove that other tubewells have been excavated in the area Parao Ragha and the said application was dismissed vide order, dated 23-9-1996. It may be mentioned here that the learned Senior Civil Judge while disposing of the application for appointment of Local Commissioner has only held that the same has been filed at a belated stage and has further held that there is nothing ambiguous to be removed to appoint the Local Commissioner. It may be observed that though the petitioner had brought on record through evidence that the other shareholders have also excavated wells but the said fact could not have been ascertainted by appointment of Local Commissioner to show whether the agreement has been implemented or the same has been violated.
14. Thus for the foregoing reasons, I am inclined to allow the petition. Consequently the petitioner is allowed to amend the prayer clause seeking nullification of the agreement, dated 10-7-1978 and the respondents may also file amended Written Statement, if they so desire. The learned trial Court is directed to frame an issue regarding this point and also allow the parties to lead evidence to that extent, the amendment is allowed subject to payment of Rs,4,000 as costs which shall be paid to be respondents. It may be observed that if any of the parties file an application for appointment of Local Commissioner, such application shall be disposed of on its own merits.
15. Consequently the judgments and decrees, dated 29th October, 1996 passed by Senior Civil Judge, Quetta and decree, dated 31-2-1997 passed by Additional District Judge-II, Quetta are set aside and the case is remanded to the trial Court with direction to dispose of the matter expeditiously within a period of six months.