' This petition has been filed to call in question the legality of order, dated 9-2-1998 passed by the learned District Judge, Sialkot respondent No, 1 allowing the application filed by Aman Ullah respondent No, 2 for amendment of the written statement.
2. Briefly stated the facts giving rise to this petition are that the petitioner filed a suit on 16-10-1991 for specific performance of the contract, dated 16-3-1991 against Aman Ullah respondent No,
2. The agreement was executed by Aman Ullah respondent No, 2 for sale of house (described with reference to boundaries) situated in New Mayanapura Sialkot for a consideration of Rs, 2,50,000 out of which a sum of Rs,2,40,000 was received by respondent No, 2 as earnest money. Respondent No,2 filed his written statement on 4.1.1992 in which he admitted that he had signed the agreement but asserted that it was done under duress at pistol point. The Trial Court framed issues on 16.1.1992 which were recast on 10-1-1994. The production of evidence was delayed because respondents Nos.2 and 3 filed a number of miscellaneous applications. First of all Mst. Shamshad Bibi respondent No, 3 (wife of Aman Ullah respondent No, 2) filed an application under Order 1, Rule 10, C.P.C. For being impleaded as a defendant in the suit on 29-6-1992. The hearing of the petition lingered on for about one year and three months. In order to avoid further delay the petitioner's counsel conceded the prayer made in the application and accordingly the application was accepted an 29-9-1993. The amended written statement was filed on 13-10-1993. The evidence could not be recorded on a few dates as respondent No, 2 was proceeded against ex parte on 25- 11-1993 and respondent No,3 got adjournments for filing her written statement. She filed her written statement on 5-12-1993 and on 4-1-1994 submitted an application for correction of issues and the needful was done on 10-1-1994. The petitioner produced his evidence on different dates and ultimately closed it on 6-12-1994. Thereafter, the defendants had to produce their evidence but again the case was delayed for one reason or the other. On 29-9-1996 the trial Court noticed that the case was pending for the defendant's evidence since 5-3-1995, hence the last opportunity for production of evidence was afforded to the defendants and the case was adjourned for 20-10- 1996. On the adjourned date learned counsel for respondent No,2 submitted an application that the matter had been referred to arbitration and prayed that the decision of the suit be made in accordance with the findings of the arbitrators. The petitioner contested the application urging therein that he had not appointed any arbitrator, therefore, the hearing of the suit could not be postponed. The decision of this application took a few months and ultimately it was dismissed vide order 15-1-1997. Thereafter respondent No,2 filed an application on 19-2-1997 under Order VI, Rule 17 of the C.P.0 for amendment of the written statement in which he incorporated the story that the plaintiff was a money lender and had lent him Rs, 1,30,000 out of which he had returned Rs, 37,000 and that the petitioner obtained his signatures on the agreement, dated 16-31991 through fraud.
The petitioner contested the application and submitted his reply pleading therein that the application was mala fide and meant to prolong the litigation. The trial Court rejected the application vide order, dated 14-3-1997. Respondent No, 2 filed a revision petition which was accepted by the learned District Judge, Sialkot respondent No, 1 vide his order, dated 9-2-1998 allowing the amendment sought for.
3, I have heard the learned counsel for the petitioner and the respondents at length and perused the material on the record. In his written statement, defendant No,2 had pleaded that his signatures were obtained on the agreement, dated 16-3-1991 under duress at pistol point. He had nowhere stated that the agreement was result of fraud and that it was without consideration. It was not his plea that the petitioner was a money lender, and that he had obtained a sum of Rs,1,30,000 from the petitioner for personal needs, returned an amount of Rs, 73,000 to him, but the petitioner fraudulently got agreement dated 16-3-1991 executed in his favour. The amendment sought to be incorporated in the written statement is reproduced below for ready reference:- {{URDU TEXT}} ' Evidently the new plea is inconsistent with the original plea taken by respondent No, 2 in his written statement. It is strange that after having filed a written Court on 4-1-1992 he came statement in the Court up with a new plea after the lapse of more than five years. The feeling is irresistible that the application is mala fide and calculated to prolong the decision of the suit. As mentioned above the plaintiff/petitioner had and thereafter his evidence on 6-12-1994 d thereafter the defendants had to produce their evidence. They used different tactics to prolong the case.
4. It is true that an application for amendment of pleadings can be made at any stage of litigation but it is not to be allowed in routine. The Court must see whether the application is bona fide and whether any new or inconsistent plea is being set up and whether allowing of amendment would unnecessarily delay decision of the suit. In the case of Tariq Mahmood Niazi v. Nadeem Afzal and another (PLD 1996 Lah. 429) (relied upon by the petitioner's learned counsel), it was held that the Courts should be liberal in permitting amendment of the pleadings which are necessary for determining the real matter in controversy but the application for amendment must be bona fide and that the defence already set up in the written statement cannot be allowed to be totally substituted nor can its nature be changed. A similar view was expressed in the case of Wareshin Khan Khan an v. Umar Daraz Kh (PLD 1996 Peshawar 32). The relevant part from the judgment is reproduced below for ready reference:- " The power to amend the written statement can only be refused where the application is based on mala fides. The basic rule, no doubt, is that the defendants should not be allowed to make a new case and that the amendment of the written statement is ordinarily not to be allowed where the plaintiff has closed his evidence, however, the same can be allowed if the defendant has acted in good faith."
' In the present case the narration of facts given above vividly reflects that the application for amendment is not bona fide and is calculated to cause further delay in decision of the suit. The defendant respondent No, 2 cannot be permitted to set up a new inconsistent plea. He ought to have come out with whole truth when he had filed his written statement on 4-1-1992. If the fact narrated in the application for amendment are really true then these must have been present in the mind of respondent No,2 throughout the period of five years. Therefore, there was hardly any justification for him to have taken five long years to bring the same on the record by seeking amendment of the written statement. Hence the trial Court had rightly rejected the respondents' application for amendment of the written statement. The revisional order passed by the learned District Judge is opposed to. The well-established principles governing amendment of pleadings and is declared to be without lawful authority and of no legal effect. The petition is accepted with the above order. #EndJudgment