This judgment will dispose of Civil Revision No. 1724 of 1995, which calls in question order, dated 24- 5-1995, of learned Senior Civil Judge, Lahore, whereby application under Order VII, Rule 11 of C.P.C.
Was dismissed and an application under Order VI, Rule 17 of C.P.C. Was allowed.
2. Respondent No.1 filed a suit for specific performance of the contract and perpetual injunction. It was claimed that the respondents were carrying on business of manufacturing and export of knit ware, defendants Nos.1 and 2 (petitioners herein) entered into business of relationship whereby respondent No.1 exported several consignments of knitted garments to them. In the course of this relationship, petitioners entered into a contract, in terms whereof, supply was to be made by respondent No. l in three batches of 500 dozen, 900 dozens and 450 dozens shirt respectively. It was claimed that 900 dozens shirts were shipped .For which certain payments were made. The consignment of 450 dozens shirts was not accepted and the respondents did not receive price for the same. It was further claimed that the petitioners had not paid differences between air and sea freight which the respondents had to incur on the previous shipments. In this back-drop, respondent No.1 asked for enforcement of the agreement, directing the petitioners to accept consignment of 450 dozens shirts for shipment and to make payment of the price thereof.
3. During the pendency of the suit the petitioner filed an application under Order VII, Rule l I of C.P.C, asking for the rejection of the plaint on the grounds that suit for specific performance could only be filed by the buyer under section 58 of Sales of Goods Act and such suits could not be maintained by the supplier. It was maintained that the suit was barred by law and,. Therefore, the plaint merited rejection. Respondent No.1 also filed an application under Order VI, Rule 17 of C.P.C. For amendment in prayer so as to include the relief of damages and for the payment of the differential amount of freight etc. Not earlier paid by the petitioners. The learned Senior Civil Judge, accepted the application under Order VI, Rule 17 of C.P.C. And rejected the one filed under Order VII, Rule I l of C.P.C.
4. Learned counsel for the petitioners submitted that the suit as initially framed was barred under section 58 of the Sales of Goods Act and, therefore the Court was duty bound to reject the plaint in an incompetent suit. It was added that amendment in plaint could not be allowed to change nature of the suit or to include new cause of action. It was further argued that a right had accrued in favour of the petitioner on account of the objection raised of which they could not be deprived.
5. Learned counsel for the respondents submitted that in a suit for specific performance, the respondents could ask for the enforcement of the agreement and for damages/compensation as alternative relief or in addition of the relief of specific performance and that the amendment by way of addition of relief of damages would neither result in changing the nature of the suit nor it would tantamount to addition of any cause of action.
6. From the pleadings, it is discernible, that the claim of respondent No. 1 was that the parties had entered into business relationship, whereby respondent No.1 agreed to supply certain consignments of garments and shirts and the petitioners agreed to pay the price thereof. The case of the respondents was that part of supply was made while the other part of the supply, though ready for shipment was not allowed to be shipped and that though the price of the first consignment was firstly withheld yet its part payment was allowed and the amount of freight etc. Was not released. In the beginning, enforcement of the agreement was claimed to compel the petitioners -to receive the supply and price thereof. Later the respondentasked for amendment to include the relief of damages on account of breach of contract and for payment of the freight amount, which was not released against the supply received. It is true that if the suit is barred by law, the plaint can be rejected under Order VII, Rule 11 of C.P.C. It also appears that the specific performance of the agreement, might not have been possible butt nevertheless, the petitioners were entitled to the relief of damages/ compensation, on account of breach of contract. Under section 19 of Specific` Relief Act, the party alleging breach of contract, can either ask for specific performance of the agreement or for the payment of compensation/damages, in the alternative or in addition to the relief already claimed. It is a settled rule, that the Court is competent to grant the relief, to which the party is entitled in the peculiar circumstances of the case, no matter the same has not been specifically asked for: It is. Also a rule that the suit cannot be dismissed on account of any defect in its form and the Court is competent to direct . Amendment in plaint for giving the relief to which the party is entitled on merit. Reference can be made to Samar Gul v. Central Government and others PLD 1986 SC 35, Ahmad Din v. Muhammad Shafi PLD 1971 SC 762.
7. In the case of S. Sibtain Fazli v. Star Film Distributors and Muhammad A.I Khan PLD 1964 SC 337 a suit for mandatory injunction was allowed to convert into a suit for -specific performance. Similarly in PLD 1978 SC 220, it was ruled that the Court can mold the relief in the changed circumstances.
Reference can also be made to Mste Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 S,C 345, where it was ruled that the amendment should be liberally allowed, where the same is required to do substantial justice to decide real matter in issue. In this case, the respondent, basically alleged breach of contract. On the basis of the initial allegation, the relief of specific performance or for damages could be claimed in the ordinary circumstances. If the Court is not in a position to grant relief of specific performance it will not be denuded to its .Powers to grant damages; provided a case of breach of contract and entitlement to recover damages is made out.
By addition of relief of damages, neither the cause of action is changed nor any cause of action is added but only result in addition of a relief, which the party is entitled to claim, in the alternative o addition to the relief of specific performance. By granting permission# amend the plaint for including relief of damages, it cannot be said that the nature of the suit has been changed.
Similarly, the supply was to be made through three consignments on the basis of L.Cs The inclusion of relief of freight etc. Which was not paid, against the first installment would not mean that a different cause of action had been added. The basic cause is the breach of contract while the remaining assertions are about its enforcement through three consignments. Respondent No.1 could claim all possible relief, on account of breach of contract in the matter of three consignments, in one suit as the same arise from the basic agreement of supply which was the main cause of action. The learned Senior Civil Judge, allowed amendment, which did not in any way, either changed the nature of the suit, or resulted in introduction of a different cause of action.
Rather the insertion of additional relief was necessary to do substantial justice and to determine the real matter in issue effectively and conclusively. On the grant of permission to amend the plaint, the objection as to the maintainability of the suit was no longer available to the petitioner, therefore, the application for rejection of plaint was rightly rejected.
8. For the reasons above, no ground is made out for interference nor any jurisdictional error could be pointed out.
9. Resultantly this revision petition being without substance is dismissed.