MUSHIR ALAM, J.-- Through this appeal appellants seek to challenge the impugned order dated 4.11.1991 passed by learned Single Judge.
2. Facts as could be gleaned from the pleadings are that the respondent No. 1 entered into an agreement dated 27.2.1978 with t;e predecessor of appellants & respondent No. 2 herein, for the purchase of their Bungalow No. JM-943/5 Clifton Road Karachi, for a total consideration of Rs.
500,000/-. It was the case of the respondent No. 1 (plaintiff) that in addition to the agreed consideration, further sum was demanded. Differences led to the exchange of notice, followed by instant suit. Originally the suit was filed against the respondent No. 1, Mst. Zohra Bai, and Mst.
Khadija Bai, who all filed their joint written statement on 5.3.1979 admitting execution of the sale agreement & so also sale consideration. Only defence urged in the written statement was that the Respondent No. 1 herein had failed to perform her part of the obligations. On the basis of the pleading on 1.4.1979 following issues were framed:
(i) Whether the plaintiff performed their part of the contract?
(ii) Relief.
3. Record further shows that almost after, Eight (b) years on 19.5.1989, the predecessor (mother) of the appellant Mst. Khadija Bai, filed an application (CMA No. 2819/1987) under Order VI, Rule 17, C.P.C. Seeking amendment of written statement.
4. It is pertinent to point out that through the proposed amendment the appellant intended to resile from the admission made in the earlier written statement. During pendency of the this Application Mst. Khadija Bai, (defendant No. 2) and so also Mst. Zohra Bai (defendant No. 3) passed away. From the record it appears that the matter came up before the Court several times. Lastly on 4.5.1989 following order was passed:-- "By consent the LR's of the defendant No. 3 are directed to amend the written statement, which will be subject to all just exceptions. Amended written statement shall be filed within 15 days. CMA 2891/87 stands disposed of."
5. The amended written statement was filed on 16.8.1981 wherein, as stated above, the defendant resiled from the admission made earlier, in as such as, total sale consideration was also denied.
However, the execution of sale agreement was admitted but the terms and conditions set out therein were claimed to be without their knowledge and entire burden was shifted on the shoulder of Respondent No. 1 namely Afzal Ali, who according to the appellant acted in breach of trust. It may also be relevant to point out that the earlier written statement was duly signed by all the defendants.
6. On 5.5.1991, further issues were adopted, listed application was filed immediately thereafter.
Learned Judge in -Chamber after hearing the parties passed the order impugned herein.
7. It is contended by Mr. Abid Zubari learned counsel for the appellant that Mst. Khidija Bai, oh 25.3.1987 engaged another counsel and it was then revealed that the facts stated in the written statement filed earlier were not placed correctly. Necessitating, the application under Order VI, rule 17, CPC. It was further contended that the amended written statement was allowed to be filed by consent and no exception can be taken to such an order. Further that the appellants being widows are entitled for due protection of law. It was further argued that the statement of fact made in earlier written statement were not correct and such re-traction is not against law. He placed reliance on Mst. Dharan Bibi and others Vs. Khushi Muhammad and others (1995 M.L.D. 290).
8. As against this Mr. Chundrigar learned counsel for the respondent, while refuting the contentions of the appellant's counsel both on facts and law. Stated that, the order dated 4.5.1989, was qualified and "subject to all just exceptions". It was further contended that the admission made earlier cannot be allowed to be retracted, a party cannot be allowed to setup absolutely different case in the garb of amendment. In support he has relied upon Haji Salman All Vs. Ali Ahmed & another (P.L.D. 1982 Karachi 111).
9. According to him powers to allow amendment can be exercised liberally but cannot be stretched to the detriment of other party.
10. There is no cavil to the proposition advanced by Mr. Zubari that the power to allow amendments are to be exercised liberally, but that the same time such liberal exercise of power are not to be stretched to an extent where it will adversely effect the other party. Usually the amendments are liberally allowed in case where there appears to be some error or omission or misdescription in the pleading. Amendment which do not change the complexion of case are allowed even at the terminal stage by the apex Court, if circumstances so warrant one can see for reference Ghulam Nabi v. Sardar Nazir Ahmed (1985 SCMR 824) Wazir Muhammad Vs. Abdul Aziz and another 1982 S.C.M.R. 189 PLJ 1999 SC AJ&K 276.
11. Basic rule governing amendment of pleadings being that through amendment .a party, cannot be allowed to change the complexion of claim or to setup altogether new case or a case diabolically opposed to the one setup in earlier set of pleading in the same proceedings. The amendment can only be made upto the extent allowed by the Court. In the instant matter the application for amendment of written statement was allowed by the learned single Judge subject to all just exception. The expression subject to all just exception used in judicial pronouncement has been interpreted by a Division Bench in case of Shamimur Rehman's V. Govt. Of Pakistan (PLD 1980 Karachi 345) at page 355 as:-- "All that is mean by the use of such word is that the allegations in the application for amendment, and the facts sought to be pleaded are not to be taken as having been accepted by the other side, who remains at liberty to challenge the same".
PLD 1982 S.C. 282) at page 285, apex Court interpreted said phrase as:- "One of the well-known meaning of the phrase. Subject to all just exception is that the order which contain that expression would be effective unless and until the other party who would be effected by such an order takes exception to it & raises objection which are ultimately upheld to be just & valid.
From the above discussion it is clear that expression. Subject to all just exception issued with purpose to preserve the right of posing party to object to proceedings or matter, in the course of a trial, being improper & illegal. The party excepting does not acquiescence in the decision of the Court, but reserves to itself the right to secure its reversal atsubsequent stage of proceedings. In the instant case, the respondent though consented to the application for amendment of written statement, yet reserved to himself right to object to the validity, legality & propriety of such amendment, which right was exercised by making an application (CMA No. 969/1991) under Order 14, Rule 5 read with Section 151, CPC praying inter alia that they they Appellant may not be permitted to rely such contents of written statement filed on 16.8.1989 which are in conflict with written statement dated 5.3.1979 signed by late defendant No. 3.
12. Purport & import of expression "subject to all just exception" is similar to phrase "without prejudice" used in relation to negotiations, agreements, compromise offer or correspondence by parties, in, order to guard against any waiver of right or privilege. In Abdul Razak v. Standard Insurance Co. (1990 MLD 1842), it was observed that the words "without prejudice" as used in judgment proceedings & when they appear in an order or decree, it shows that judicial act is not intended to be res-judicata of the merits of the controversy. Similarly in case of Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation (1986 CLC 2555) it was held that where appointment of arbitrator & participation in arbitration proceeding was without prejudice to objection of limitation, right to challenge such proceedings subsequently on the ground of limitation would not stand waived.
13. By permitting the appellant to file amended written statement, subject to all just exception, the Court in fact permitted only such amendment as are permissible under law. The Court did not examine the merits of such amendment but left it open for the plaintiff to challenge the validity, merit & propriety of such amendment. When such challenge & objection was made, learned single Judge examined it and in consideration of following dicta laid down in the case of Haji Suleman Ali (PLD 1982 Karachi 111) at page 114:-- "The defendant does not acquire unfettered rights to change the written statement in toto or substitute it by a completely new written statement. Although the provisions of Order VI, Rule 17, C.P.C., may, not strictly govern such amendment in the written statement, the Court is entitled to apply the principles relating to amendment of pleading while examining the amended written statement. All such amendments which a defendant is not entitled to plead or are in contravention of the principles governing amendment of pleading will not be allowed to be taken in the amended written statement without the permission of the Court. The Court has vast discretionary powers to grant to promote the ends of justice and determine the real controversy between the parties.
Whilst filing amended written statement besides replying to the amended part of the plaint, the defendant can also raise pleas, which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier new or inconsistent case as pleaded in the earlier written statement. Admission made by a party in the pleading cannot be revoked without the leave of the Court.
Allowed the application of the respondent and such amendments, which were in conflict with the written statement filed earlier were ordered to be ignored for all purposes.
14. Contention of Mr. Chundrigar that admission cannot be allowed to be retracted by seeking amendment in pleading is not without force. The appellant's predecessor, having signed the written statement filed in 1979 cannot be allowed to retract from the admission made therein as same amounts to admission under Order VIII, Rule 5, CPC and in a case reported as secretary to Government v. Abdul Kafil (PLD 1978 S.C. 242), the amendment sought by the Government was declined; following observation of the apex Court appearing at page 248 are relevant.
"The learned additional Advocate-General, however, contended that the said admission made in the written statement was factually incorrect; that in order to get rid of the same, the appellant Government had, therefore, filed in the Trial Court an application under Order VI, rule 17, CPC praying therein for the amendment of the written statement, but the same was wrongfully rejected . I am afraid there is no force in this contention. It is well-settled that admissions made in a written statement has altogether different legal significance than admissions generally. In this respect reference may be made to Order VIII, Rule 5, C.P.C., which runs as under:- "5 Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
15. In the instant case, even the legal notices that were given before litigation correspond to the defence taken earlier, by the appellant in their written statement. Therefore there appears no reasons to take a different view than what has been taken by the learned Judge in chambers. The stands dismissed.