SAVED NAJAM-UL-HASSAN KAZMI, J. Respondent, Muhammad Sharif, filed a suit for claiming declaration to the effect that he was owner of land measuring 2 marlas in khasra No. 39/10/4 on the basis of an oral sale made in his favour and that the gift of land measuring 3 kanals, 1 marla, inclusive of the land measuring 2 marlas was invalid to the extent of 2 marlas of land. As a consequential relief, a decree for injunction to restrain the appellant from making interference in possession of the respondent was claimed. It was alleged that the land in question was purchased through oral sale in consideration of Rs. 900/- whereafter a shop was constructed.
2. After issues and evidence, the learned Civil Judge decreed the suit on 21.12.1972. Appeal filed by the appellants was dismissed by the teamed Additional District Judge, Okara vide judgment dated 5.6.1984. The two judgments are subject-matter of challenge in this second appeal.
3. Learned counsel for the appellants argued that no registered sale-deed was produced and only oral sale was claimed on the basis of alleged entry of Roznamcha Waqiati which was not signed by the appellants. It was added that the learned Additional District Judge mainly concentrated on the application under Order 6 Rule 17 of CPC and concluded that the order rejecting the application having not been challenged in appeal or revision, the same could not be questioned in the final appeal against the decree. Learned counsel submitted that the view formed by the learned Additional District Judge is patently against law. It was contended that oral as well as documentary evidence was produced by the parties which comprised of PW-I to PW-8 and DW-1 to DW-6.
Documents Exh.P-1 to P-10 and Exh.D-1 to D-5 were tendered in evidence but the learned Additional District Judge did not look into the evidence at all and decided the appeal in a mechanical manner.
4. Learned counsel for the respondent supported the impugned judgment.
5. On careful considering the submissions made in the light of available record, it is observed that the learned Additional District Judge committed gross illegalities, in as much as, the appeal was dismissed by taking incorrect view of law and also by ignoring the evidence on record. The learned Additional District Judge rejected the plea for amendment on the ground that the application was not tiled within reasonable time and that without allowing amendment, the suit could he effectively disposed of. It is repeatedly held that the amendment in the pleadings can be claimed at any stage of the proceedings. Even in the course of appeal amendment can be allowed. Reference can he made to 1963 SC 190 and PLD 1985 SC 345. Ordinarily, amendment is allowed where it is necessary for resolving the real controversy and sufficient ground is made out for seeking permission to amend the pleadings. In this case, the appellants intended to amend the written statement so as to include the objections pertaining to limitation and valuation of the suit. Under Section 3 of the Limitation Act, it is the duty of the Court to satisfy that the suit was within time, no matter limitation had not been pleaded specifically as a defence. Similarly, the issue pertaining to valuation is between the Court and litigant and, therefore, the Court is expected to ensure that the suit is properly valued for the Court-fee purposes and that payment of Court-fee is not illegally withheld. The insertion of these two objections could not change the nature of the Court, though it would have been helpful for deciding the main case or substantial part thereof. Application could be accepted during proceedings of the suit, and thus the delay could have been avoided. The learned Civil Judge as well as the learned Additional District Judge fell in error in refusing the amendment in the written statement for totally illegal and unfounded reasons. The view taken by the Appellate Court, being contrary to the law cannot, therefore, sustain.
6. It is also observed that while deciding issues Nos. 1 and 4 the learned Civil Judge did not care of evidence and recorded findings of fact. These findings were challenged on the ground that the same were based on misreading of record and suffer from error of law. The main objection was that there was no registered sale-deed, oral sale was riot proved, the alleged entry in the Roznamcha Waqiati could not itself be deemed to be an instrument of sale, the entries in Khasra Girdawari belied the plea of Possession, the other documentary evidence would show that the property was never sold. Learned Additional District Judge, did not consider these objections nor looked deep into the evidence. In fact, he made cursory review of one witness and proceeded to dismiss the appeal. As noted herein above, eight witnesses were produced by the respondents and six by the appellants. Documents Exh.P-1 to P-10 were produced by the appellants while Exh.D-1 to D-5 were produced by the respondent. These documents had direct bearing on the decision of the case. The documents were kept out of consideration. Oral statements of witnesses were ignored and in a summary manner, the appeal was dismissed. It was the duty of the learned Additional District Judge to reappraise the entire evidence, consider the reasons recorded by the learned Trial Court, examine the points raised in the appeal in the light of evidence on record and to record judgment supported by independent reasons. The first appeal re-opens the whole lis and the Appellate Court is expected to look deep into the controversy and the evidence led by the parties, so as to decide the appeal effectively. Disposal of the appeal by cursory look on a part of evidence cannot be deemed to be proper and lawful disposal of the appeal. Since the appeal was decided without considering the entire evidence and attending to the real issue arising out of the pleadings, therefore, the impugned judgment cannot sustain. Additionally, the amendment was illegally refused, though insertion of additional objections was relevant for decision of the suit.
7. For the reasons above, the impugned judgment of the Appellate Court cannot sustain which by accepting the appeal is set aside. The case is remanded to the learned Additional District Judge for decision of the appeal afresh, after allowing amendment in the written statement. The Appellate Court shall consider the entire evidence and dispose of the appeal on merits and in accordance with law, in the light of observations made herein above. The appeal shall be finally decided within four months, with intimation to the Deputy Registrar (Judicial) of this Court.