The facts giving rise to this civil revision are that one Sher Muhammad made a gift of his land in favour of his daughter, Mst. Inayat Bibi. On this, the collaterals of Sher Muhammad filed a suit against them for a declaration that as the gift was opposed to the law and custom governing Sher Muhammad it was void and ineffective as against their reversionary rights. In that suit, Mst. Inayat Bibi and Sher Muhammad figured as defendants Nos. 1 and 2 respectively.
2. During the pendency of the suit, Sher Muhammad died whereupon the plaintiffs made an application for amendment of the plaint so as to claim possession of the disputed land instead of a mere declaration. The learned Civil Judge, who was seized of the suit, however, allowed the plaintiffs to amend the plaint so as to claim possession of the land by way of consequential relief.
Feeling aggrieved by the order of the trial Court, Mst. Inayat Bibi has come up in revision to this Court.
3. Learned counsel for the petitioner has contended that since the plaintiffs did not pray for amendment of the plaint so as to claim possession by way of consequential relief, the order of the learned Civil Judge allowing them to claim possession as such amounted to a suo motu order of amendment which he could not do under the law. In raising this contention, he relied on the case of Shuja-ul-Mulk v. Firm Abdul Ghafoor Abdul Qadim (PLD 1964 Pesh. 110).
4. It is true that in the case under report it was ruled that a Court cannot direct amendment of a plaint suo mote, but in the circumstances of the present case it cannot be said that the learned Civil Judge had allowed amendment of the plaint in the absence of any request by the plaintiffs.
The fact of the matter is that the plaintiffs applied for amendment of plaint so as to claim possession of the property in dispute instead of a simple declaration in relation thereto, but the trial Court allowed them to ask for possession by way of consequential relief without altogether abandoning the claim for declaration. Since the impugned order was made by the Court in pursuance of the plaintiffs' application and not of its own motion it cannot be treated as a suo motu direction by the Court. The fact that the trial Court allowed the amendment in a form different from the one desired by the plaintiffs does not alter the nature of the order of amendment.
The authority cited by the learned counsel is, therefore, not applicable to the facts of the present case.
5. The amendment in question had been necessitated by the death of one of the defendants and not by any act of omission or commission on the part of the plaintiffs. The trial Court, therefore, did not commit any illegality or material irregularity in allowing the amendment.
6. In my view, there is no merit in this appeal. It is, therefore, dismissed in limine.