MAULVI ANWARUL HAQ, J.--- On 31.7.1979 the petitioners filed a suit. In the plaint it was averred that respondents were owner of the suit house which was transferred to them against their claim by the Settlement Department and the price had been adjusted from the compensation book of the respondents. They agreed to sell the suit house to the petitioners for a consideration of Rs.3200/- vide agreement to sell dated 3.1.1961 after receiving the said amount of consideration. They also executed a receipt for the said amount and an affidavit which was attested by an Oath Commissioner, Chunian. After executing the said documents the respondents delivered the possession of the suit house to the petitioners who are continuing in possession. According. To the petitioners upon conferment of permanent rights by the Department. The respondents, however, did not take any steps to obtain the permanent transfer documents and ultimately made the petitioner to pay a sum of Rs.725/-. Towards the same outstanding charges and P.T.D. Was issued on 25.7.1979.
Thereafter the petitioners called upon the respondents to transfer the suit house to him by executing the sale-deed but he refused. With these averments the petitioners proceeded to pray for a decree for , declaration that they are the owners of the suit house and their possession be confirmed as that of owners. The respondents filed written statement objecting that the form of the suit is not correct and that a suit for specific performance ought to have been filed. On merits they denied the execution of the agreement and instead alleged that the petitioners are his tenants.
Alternatively they pleaded that if any agreement is proved then the suit is barred by time. Following issues were framed:-
(1) Whether the suit is time-barred?
(2) Whether the suit is not maintainable in its present form?
(3) Whether the plaintiff is estopped from filing the present suit by his own act and conduct?
(4) 'Whether the defendant has made an agreement dated 3.8:1961 regarding the land and received Rs.3200/- as price?
(5) Whether the plaintiff has became an owner of the suit land?
(6) Relief.
Evidence of the parties was recorded. However, the learned Trial Court took-up issue No. 2 only and proceeded to hold that suit is not maintainable being not in the proper form. Regarding the remaining issues the learned Trial Court proceeded to declare them redundant. The suit was dismissed vide judgment and decree dated 24.3.1986. The petitioners filed an appeal which was heard by a learned Additional District Judge who dismissed the same on 6.7.1987.
2. Present Civil Revision was filed in this Court and alongwith the Civil Revision an application (C.M.
No. 4225/87) was filed. This application came-up before this Court on 26.9.1987 and a notice was issued to the respondents. A reply was filed. On 8.3.1988 it was ordered that the C.M. Be argued and heard alongwith the Civil Revision. On 9.4.1988 the Civil Revision was admitted, to regular hearing regarding C.M. No. 4225/87, it was agreed by the learned counsel for the parties that it should be argued at the time of hearing of the Civil Revision. Today arguments have been addressed in the said application as also the Civil Revision.
3. The application has been filed under Order VI, Rule 17, CPC, so as to enable the petitioners to amend their plaint to claim the relief of specific performance of the agreement to sell. The application has been opposed"with .The pleas that the proposed amendments would change the very nature of the suit and the very cause of action would stand substituted. It has further been stated that the application is belated.
4. I have considered the contentions of the learned counsel. I find that contents of the main body of the plaint as they are subject to proof, may entitle the petitioners to the grant of a decree for specific performance of- the agreement. I also find that the pleadings of the parties are complete and they went on trial on the issues framed on the basis- of the said pleadings. Learned Trial Court, however, opted to dismiss the suit on the basis of what for all purposes is a defect of form and nothing else. It is by now well-settled that where the form of a suit is found to be defective, the concerned party ought to be first given a chance to correct the form. This has not been done in the present case by any-of the learned Courts below.
5. The amendment sought is only this much that the petitioners want to seek the relief of specific performance on the basis of his pleadings already on record. To my mind this would neither change the nature or complexion of the suit nor it constitutes a substitution of the cause of action..
Reference may here be made to the case of Mst Ghulam Bibi and others VS. Sarsa Khan and others (PLD 1985 SC 345), where in similar circumstances in the course of an R.S.A. a similar amendment was allowed-and the Supreme Court of Pakistan approved the grant of permission to amend the plaint in the terms the present petitioners are praying for. So far as the question of delay is concerned, I find that the respondents need to be compensated with costs. I, therefore, allow C.M.
No. 4225/87 and permit the petitioners to amend their plaint as proposed in the said application.
This will, however, be subject to payment of Rs.5000/- as costs to be paid by the petitioners to the opposite party.
6. Since the suit has been dismissed only because of defect of form which now stands corrected as I have allowed the application for amendment of the plaint and the other issues have not been decided by the learned Courts below, I allow this Civil Revision and set aside the judgments and decrees of both the learned Courts below. The result would be that the suit shall stand remanded to the learned Senior Civil Judge, Kasur where the parties shall appear on 20.11.2000 and the petitioners/plaintiffs shall file an amended plaint, in terms allowed today and also tender costs of Rs.5000/- to the respondents/defendants. The learned Senior Civil Judge then thereafter shall proceed with the suit himself or entrust the same to a competent Civil Judge who shall take the amended written statement from the respondents/defendants, frame such additional issues as are needed to be framed on the basis of the amended pleadings and in case the parties wish to produce some more evidence, after giving them an opportunity to do so decide the suit and take all steps to so decide the suit before 30.6.2001.