' This is a writ petition arising out of an application for amendment of the plaint in a suit, filed by the petitioners, for declaration which application was allowed by the learned trial Court but in revision the said order was set aside by the learned District Judge. Briefly stated it has the following background:--
2. A suit for declaration was filed by the petitioners against the respondents that they were entitled to 2/5th share in the suit land, left by Mst. Maqsoodan Bibi, widow of Mureed Hussain Shah, as her legal heir, and that gift deed, dated 6-6-1978 purported to have been executed by her in favour of the defendants/respondents, was a fabricated and forged document which was void and inoperative against their right. The suit was contested by the defendants/respondents, wherein the execution of the gift deed was claimed as a valid document. An application was filed by the petitioners/ plaintiffs for carrying out an amendment in the plaint that by inadvertence the land situated in Mauza Jalalpur Jagir, could not be mentioned in the plaint which may be allowed to be included in the plaint. The application was contested by the respondents/defendants. The learned trial Court vide order, dated 21-6-1981, after hearing the parties, found that the non-mention of Jalalpur Jagir in the plaint was an omission through inadvertence and that the amendment would not change the nature of the suit. The same was accordingly allowed on payment of Rs,50 as costs.
This order was challenged by the respondents/defendants in revision which was accepted by the learned District Judge, Sargodha on 5-7-1982, who took the view that the failure to include the land situated in Mauza Jalalpur Jagir could not be characterized as a minor or formal one. This is a petition against the same.
3. It is contended by the learned counsel for the petitioners that the relationship of the peitioners/plaintiffs with the donor Mst. Maqsoodan Bibi is not denied by the defendants/respondents and in the plaint gift deed, dated 6-6-1978 as a whole had been challenged which included the land situated in Mauza Jalalpur Jagir as well. It is contended that non-mention was merely an omission through inadvertence and the amendment was rightly allowed by the learned trial Court in exercise of its judicial discretion. It is further contended that the suit was still at the initial stage and no illegality had been counted by the learned trial Court which could warrant interference by the learned District Judge in revision. He relied on Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd., Bhalwal 1971 SCM R 507 to contend that an order passed under Order VI, Rule 17 of C.P.C. Allowing an amendment of plaint was not a "case decided" and no revision petition was competent thereagainst and that the amendment could be allowed at any stage in order to determine the real questions of controversy between the parties. Reliance has been placed on Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and SEMCO Salvage (Pvt.). Limited v. M.V. Kaptan Yusuf Kalkavan and another 1993 SCM R 593 in support of his contention.
4. As against this, the learned counsel for the respondents contends that by omission of Mauza Jalalpur Jagir in the plaint valuable right has accrued in favour of the respondents/defendants as no relief had been claimed about the same, therefore, the omission could not be regarded as merely of an inadvertent or of a clerical nature. It is contended that such a prayer for amendment could not be granted at a belated stage. It is further contended that in writ jurisdiction there is a very narrow scope for interference with a provisional order.
5. The suit was filed by the petitioners/plaintiffs on 7-3-1979, whereby; the validity of the gift deed, dated 6-6-1978 purported to have bee executed by Mst. Maqsoodan Bibi had been challenged. The application for amendment was made on 26-5-1981 which was allowed by the learned trial Court.
The suit was still at the initial stage. No evidence had yet been A recorded. It was not a belated move. Even otherwise it was, within the limitation available for challenging the gift deed. The question of accrual of a vested right in favour of the respondents/defendants, therefore, was not relevant.
6. It was plain from the reading of Rule 17, Order VI of C.P.C. That the Court is empowered to allow the amendment in the pleadings at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties. The real issue that would determine the fate of controversy is the validity or otherwise of the gift deed, dated 6-6-1978 which prayer had already been made in the plaint. The omission of land situated in the other Mauza was, thus, rightly considered by the learned trial Court as an in advertant omission and the amendment was accordingly allowed. The approach of the learned trial Court was consistent with the law laid down by their Lordship in Mst. Ghulam Bibi's case (supra) and in the case of SEMCO (supra). The learned District Judge, however, had a different approach in the matter. It was a revision before him in a matter wherein the learned trial Court had exercised its judicial discretion in allowing the amendment. It was not open to interference by the revisional Court unless the exercise of discretion was so patently, arbitrary or unwarranted by the facts and circumstances of the law. The present case was not of such a nature as could warrant interference by the learned District Judge.
7. The reliance of the learned counsel for the petitioners on Ch. Ahmad Din's case (supra) that it was not a "case decided" so as to warrant interference in revision, is misplaced in view of the latter decisions by the Honourable Supreme Court in Bashir Ali Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507 and Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCM R 221.
8. The contention of the learned counsel for the respondents that the revisional order cannot be interfered with in writ jurisdiction, is untenable in the facts and circumstances of the case. No hard rule can be laid down that in no case the writ jurisdiction is invokable against the revisional order. It only d depends upon the facts and circumstances of a case. In the circumstances of the present case, as stated above, I am of the view that it was not a case for interference by the learned District Judge in revision.
' As a result of the above, this petition is accepted. Order of the learned District Judge, dated 5-7- 1982 is declared to be illegal and of no legal effect.
' No order as to costs.