The brief facts out of which the present written petition arises are that a suit seeking decree for declaration with consequential relief by way of permanent injunction is pending on behalf of the respondents against the present petitioners before the Civil Judge, Kasur. The respondents submitted an application in the trial Court seeking amendment of the plaint of their suit so as to add consequential relief by way of decree for possession of the property in question. The application was dismissed by the trial Court vide order dated 3-1-1989. The respondents being aggrieved filed revision petition before the Additional District Judge, Kasur who accepted the same vide judgment dated 6-4-1989, hence the present writ petition.
2. The learned counsel of the petitioners submits that the impugned order of the revisional Court is not sustainable in law as the respondents/plaintiffs had filed the revision petition against the rejection of their third application for permission to amend the plaint. He further submits that the first application for amendment was not pressed by the respondents/plaintiffs and the second application was rejected on the ground that it must cause prejudice to the petitioners/defendants.
The respondents/plaintiffs kept silent for considerable time and thereafter respondents/plaintiffs filed third application for allowing the amendment of the plaint. The trial Court rejected the same with cogent reasons on 3-1-198.9 which was reversed by the revisional Court without cogent reasons. He further submits that all the applications were of the same nature and on the same grounds of facts and circumstances, therefore, he urges that general principle underlying the rule of res judicata shall apply to the case in hand even without recourse to the provisions of section 11 of C.P.C. On the well-known principle that no person shall be twice vexed over the same cause of action and that there should be an end to litigation. In support of his contention he relied upon PLD 1963 Lahore 566 (Aman Ullah Khan and others v. Khurshid Ahmad). He further submits that under Order 6, rule 17, C.P.C. The amendment can be allowed only to determine the real questions in controversy between the parties whereas in the present case the issues framed did not include an issue on the point of possession as the same stood established to be with the petitioners/defendants by, the order of the Court on the report of the Local Commissioner. In support of his contention he placed reliance on AIR 1948 Nagpur 119 (Chunni Lal v. Deo Ram and another), wherein it was held that "real questions in controversy as stated in Order VI, rule 17 are such questions on which issues are framed. He further submits that the respondents/plaintiffs had filed a suit for declaration challenging the Hibba on the ground that the possession had not passed under it and further praying for consequential relief of restraining the petitioners/defendants from asserting any right under the said Hibba but since it was established through the report of the Local Commissioner that the possession of the suit property had passed to the petitioners/defendants, only then the respondents/plaintiffs filed an application for the amendment of the plaint to the effect that the consequential relief of possession may be allowed.
He further submits that respondents'/plaintiffs' conduct being mala fide, the amendment should not have been allowed as they had made a misstatement regarding the possession of the suit property. He further submits that the amendment allowed shall change the very nature and character of suit and that the respondents/plaintiffs having hopelessly failed to prove the original case shall be permitted to try and succeeded upon another and that too directly in conflict with their primary allegations. In support of his contention he relied upon AIR 1930 Nagpur 295, Gobind v.
Waliram, in which the principle laid down is that where there is absence of good faith on the plaintiff's part in applying for amendment, and the effect of allowing the amendment would be to convert the suit into one of totally different character, in such circumstances, the amendment of the plaint should not be allowed. He further urged that as the respondents/plaintiffs application for amendment of the plaint was based on mala fide and not relevant to real questions in controversy, and as it shall gravely prejudice the case of the petitioners'/defendants' as the evidence of the parties had concluded, therefore, it shall subvert justice and not advance it. In support of his contention he relied upon Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345. He further submits that revisional Court decided the case without adverting to the aforesaid principles, and without adverting to the contents of the third application and the contents of the plaint which clearly reveal that respondents/plaintiffs had changed their pleas and stand and took inconsistent pleas and the revisional Court did not advert to this aspect of the case. In support of his contention he relied upon the following judgments: AIR 1932 Lah. 322 (Ghazi v. Manga); AIR 1934 Lah. 235 (Suimal Chandra Chatterji v. Radhanath Ray); PLD 1960 Lah. 975 (Shah Muhammad v. Hayat and others).
3. The respondent engaged Mr. Zahid Farani, Advocate who showed his inability to appear in this case as he was appointed as A.A.-G. He was engaged by the respondents before his appointment as A.A.-G. The present writ petition is between the private parties and in this view of the matter he was directed to appear in this case keeping in view that this writ petition is pending adjudication since 1989. The learned counsel of the respondents submits that judgment of the trial Court is not in accordance with the mandatory provisions of Order VI, rule 17, C.P.C. He further submits that the learned trial Court noted the judgments of the Superior Courts (i.e 1984 CLC 159 (State Life Insurance v. Nasim), 1982 CLC 284 (Mando v. M. Umar) in para. 5 but did not discuss the same and rejected the application of the respondents in violation of the law laid down in the judgment mentioned in para. 5 of the order of the trial Court. He further submits that judgments cited by the learned counsel of the petitioners are distinguished on facts and law. He further submits that superior Courts have changed the previous principles and allowed the amendment in librally in the interest of justice and fairplay. He further submits that the revisional Court reversed the order of the trial Court in the impugned judgment with reasons and in accordance with law laid down by the Hon'ble Supreme Court in PLD 1985 SC 345 (Mst. Ghulam Bibi v. Sarsa Khan). He further submits that the impugned judgment is in accordance with the law laid down by the superior Courts in the following judgments:-- AIR 1930 Nag. 295 (Niyogi V. Bliram); AIR 1948 Nag. 119 (Chunnia Lal v. Deoram); PLD 1998 Lah. 172 (Manzoor Hussain v. Malbhan); PLD 1963 Lah. 566 (Amanullah v. Khurshid); 1998 CLC 555 (Akram v. M. Ashraf); 1999 YLR 10 (Hurmat Khan v. Zahoor Khan); 1999 YLR 1511 (Anwar Hussain and 2 others v. Manzoor Ahmad and 2 others); and 1998 MLD 1260 (Haji Hakim Gul and others v. Madad Khan and others). He further submits that principle of res judicata is not attracted. The judgment relied upon by the learned counsel of the petitioner PLD 1963 Lah. 566 supported the case of the respondents/plaintiffs. He summed up his arguments that writ petition against the revisional order is not maintainable.
4. have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is settled principle of law that technicalities should not be hindrance in the way of justice as per principle laid down by the Hon'ble Supreme Court in Khuda Yar's case PLD 1975 SC 678 and the relevant observation is as follows:--##TE# "Mere technicalities unless over the unsurmountable should not be allowed to deviate the ends of justice." The aforesaid judgment upheld the view taken by the Supreme Court in Imtiaz Ahmad's case PLD 1963 SC 382. The judgment cited by the learned counsel for the petitioners is distinguished on sole ground that the Hon'ble Supreme Court departure from the previous practice and insisted to avoid technicalities and cases must be decided on merits after the addition of Article 2A in the Constitution as per principle laid down by the Hon'ble Supreme Court in Said Muhammad's case PLD 1989 SC 532. It is settled principle of law that amendment sought in effect is formal in nature and by allowing in nature of the suit is not changed as per principle laid down by the Hon'ble Supreme Court in PLD 1993 SC 332 (Mir Mazhar's case). The amendment can be made at any stage of the proceedings as is envisaged by Order VI, rule 17 itself and the law laid down by the Hon'ble Supreme Court in PLD 1963 SC 191 (Kiramat Ali's case). The facts remain for amendment in pleading may be allowed at any stage of the proceedings to secure and serve ultimate ends of justice procedural provisions have to be invoked and interpreted with the aforesaid ends in view and must be subordinated to the object of dispensation of justice for securing which the entire judicial system has been evolved and is functioning. Therefore, discretion that vests in the Court, in the sphere in question, has to be liberally exercised, without of course trampling legitimate interests of the other side. Order VI, rule 17 cast duty upon the Court keeping in view in interest of justice and to allow case to run on correct lines for decision for real controversy In arriving to this conclusion I am fortified by the reported case PLD 1978 Lahore 1394 (Ahmad etc. v. Fazal Muhammad). The general principle of res judicata is not attracted in present case as per principle laid down by this Court in Aman Ullah Khan's case PLD 1963 Lahore 566. It is also settled principle of law that mere filing application for amendment at belated stage is not a ground to reject the application for amendment. In arriving to this conclusion I am fortified by Sardar Muhammad Anwar Khan's case 1988 CLC 402. The principle of granting amendment in the pleadings has been laid down in Mst.
Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, the relevant observation is as follows:-- "Once the Court decides that the amendment is necessary for the said purpose of determining the real question. The Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. It was also observed as follows: In the light of the foregoing discussion if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change, the question of limitation would then remain only of form and not of substance that is why this Court has so far followed the liberal rule in interpreting Order VI, rule 17 so as to permit amendment of otherwise necessary notwithstanding the possibility that on account of some formal change, the question of limitation might have acquired pronounced importance, had it not been a case of amendment under Order VI, rule 17'."
If an application for amendment, under Order VI, Rule 17, C.P.C. Is preferred at any stage of the proceeding it should unless equities are otherwise or there is some good reason for summary rejection, be decided on merits. An amendment of the plaint is almost the right of a party when it relates to the cause of action on which the suit is based. It is also settled principle by this time, once the Court decides that the amendment is necessary for the purpose of determination the real question as envisaged under Order IV, rule 17, C.P.C., the Court is required by law not only to allow the application for amendment made by a party in that behalf but is also bound to direct the amendment for the said purpose. This proposition is, however, subject to the condition that tile cause of action does not change the main substance and nature of the suit. It is better and appropriate to reproduce the operative parts of the order and judgment of the Courts below to resolve the controversy between the parties: Order of the trial Court dated 3-1-1989: "So far as the amendment of the pleadings is concerned, no doubt the view of superior Courts is very much liberal but in the present state of affairs where an application for contempt of Court was dismissed and after that application amendment was refused the permission to amend the plaint can complicate the matter and affect the rights of the opposite-party adversely, therefore, at this stage I am declined to accept the application."
Judgment dated 6-4-1989: "The law laid down in PLD 1985 SC 345, is that, delay alone in applying for amendment of the plaint, is not sufficient to refuse amendment of pleadings. It has been further held that while considering the request of party for amendment of their pleadings, technicalities may be avoided as rules of procedure are meant to advance justice, and, to preserve rights of litigants and they are not meant to entrap the litigants into blind corner so as to frustrate purpose of law, and, justice. In the present case, if through amendment of the plaint, the petitioners are allowed to seek consequential relief by way of decree for possession of property in question, such an amendment in the plaint is not likely to change the nature of the suit for cause of action. The main substance of the suit and, its nature will remain the same in spite of such amendment carried out in the plaint. The amendment sought by the petitioners is permissible and necessary to avoid multiplicity of actions between the parties, and to finally, and, effectively, adjudicate upon the dispute between the parties." The aforesaid operative parts of the judgments of the Courts below clearly show that revisional Court decided the revision with reasons in accordance with law laid down by the Supreme Court.
The trial Court rejected the application on extraneous grounds and dismissed the application without any cogent reasons meaning thereby the trial Court has refused to exercise discretion fairly, justly whereas revisional Court exercised the discretion in accordance with law laid down by the superior Courts as mentioned above. The petitioner has challenged the order passed by the Additional District Judge in revision, a further revision to this Court is clearly prohibited in section 115(3) of C.P.C. In the absence of a jurisdictional defect in the order, amended section 115, C.P.C.
Manifested a clear intention that the order passed in revision shall be 'treated as and held final.
Constitutional remedy is both extraordinary and exceptional and ordinarily should not be invoked on a mere difference of opinion on a point of law or fact. By the proposed amendment, neither the complexion of the suit was changed nor the cause of action displaced. Relief claimed in the suit remains the same only an additional plea was sought to be added qua the possession. Therefore, writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- PLD 1981 SC 246 (Muhammad Sharif's case), an PLD 1981 SC 522 (Abdul Rehman. Bajwa's case).
In view of what has been discussed above, this writ petition is dismissed with no order as to costs.