' The facts of the case giving rise to this appeal are that Ahmad appellant executed a deed of agreement to sell the suit property in favour of Fazal Mohammad plaintiff-respondent on 12-8-1963 and received an amount of Rs, 2,500 as earnest money. The property was agreed to be sold for Rs, 4,000. The possession of the property was delivered. On 26-9-1963 the appellant sold the property for Rs, 5,000 to Gul Muhammad executing a registered sale deed in his favour. Fazal Muhammad, respondent thereupon brought a suit for declaration that he was the owner of the property having paid the entire price agreed upon between him and Ahmed, appellant No,
1. The suit was resisted and as many as 8 issues were framed. The suit was decreed. But in appeal the learned Additional District Judge, Faisalabad set aside the decree and remanded the case directing that the respondent shall be called upon to amend the plaint so as to convert his suit to one for specific performance of the contract and to pay proper court-fee thereon. He upheld the finding of the learned trial Judge recorded on issues Nos. 5, 6 and 7. The said remand order has been challenged in this first appeal.
2. It has been argued by the learned counsel for the appellants that since the learned District Judge found that the suit was not maintainable in its present form and that suit for specific performance should have been brought, he should have dismissed the suit instead of remanding it and directing the amendment of the suit because there was no prayer for amendment. The line of his argument is that the nature of the suit changes by the amendment. He has relied upon 1969 SCMR 29 and 1971 SCMR 395. The observations made in the first ruling are that : "This amendment was in our opinion, rightly disallowed, for as the High Court has pointed out, it sought to introduce a completely new case on which no evidence had been led and the parties had never joined issue at any earlier stage."
' In the second mentioned authority the facts were that in the original plaint it had been admitted that in the total land comprising of 16 shares, Sarbuland, the father of the appellant owned two shares only. The appellant then filed an amended plaint with an application under Order VI, rule 17 seeking to convert the whole position by alleging for the first time that Sarbuland had predeceased his father Nasir in the year 1904 and that Mst. Habib Noor was only given a maintenance grant and had no title to the suit land. The amendment was allowed. The observations made are that: "This amendment was allowed by the lower Court, which we feel should not have been done because it changed the entire nature of the suit?"
' Both the authorities are not helpful because in those cases totally a new matter was being introduced by the amendment but in the present case this is not so. No new point was allowed to be raised. The agreement on the basis of which the plaintiff-respondent claimed the land is the same and the only change which is to be effected is that instead of the prayer of declaration to the effect that the respondent is the owner, a relief of specific performance of the contract will be sought. The period of limitation for bringing the suit for specific performance had run down during the pendency of the wrong suit for declaration. If the amendment had not been allowed, the suit for specific performance would have been time-barred. If the suit for declaration had been brought after the period of limitation for bringing the suit for specific performance had run down, of course it could be said that a valuable right by lapse of time has accrued to the appellant, which in the circumstances of the case could not have been disallowed to him by allowing the amendment, but since the period of limitation ran down during the pendency, the appellants have not been prejudiced by the amendment. To decide the real controversy between the parties, it is necessary that the case should be allowed to run on the correct lines.
3. Learned counsel has argued that since no prayer was made for amendment, the direction to amend the plaint was not just and proper. This is true that it does not appear that any request for amendment of the plaint was made but the Court was not debarred from directing amendment, if otherwise it was considered to be necessary for the ends of justice. However, the learned Additional District Judge should have imposed costs upon the respondent while directing the amendment suit because the appellants will face inconvenience by the amendment. Likewise the learned Addl.
District Judge was not justified in upholding the finding of the learned trial Judge recorded on issues Nos. 4 to 7 when he had elected to remand the case with the direction to amend the plaint.
The plaintiff/respondent failed to bring the suit in the right form in the beginning and the appellants failed to bring on the record the relevant evidence in support of the said issues. So when the direction for amendment of the plaint was made, in the interest of justice the finding of the learned trial Judge on issues Nos. 4 to 7 should have been set aside with the direction that they may be decided after affording further opportunity to the parties to produce evidence on the whole case,
4. I accordingly partly accept the appeal and maintaining the order of remand and the direction of amending the plaint. Set aside the finding of the Courts below on issues Nos. 4 to 7 and direct the learned trial Judge to decide the said issues again after affording opportunity to both the parties to produce evidence. If any new point arises by the amendment, the same will also be brought under issues and the parties given opportunity to produce evidence. The order of the amendment of the plaint will be subject to the payment of the costs of Rs, 100 by the plaintiff/respondent to the appellants. As the remand order has been upheld, the parties are left to bear their own costs of appeal.