1. G. SAFDAR SHAH, J.-Kazi Abdul Kafil, the respondent in the main appeal, has filed this application under Order XLIX, rule 6 of the Rules of this Court praying therein for the grant of permission to enable him to amend his plaint. In substance the prayer made by him is that he should be allowed to suitably amend his plaint so that the Court may, by way of consequential relief, grant him the money decree for Rs. 8,94,933.37. His case is that the trial Court as well as the High Court both have granted him decree for the said amount, on which he has also made up the deficiency of Court- fee Stamp, but since in the plaint no precise prayer had been made by him for consequential relief be, on account of abundant caution, has moved this application.
2. Mr. Noor Ahmad Khan, the learned counsel for the appellant Govern--ment has opposed this application, although he has not filed any written objections against it. He, however, argued that if this application is allowed, it would tantamount to changing the very nature of the suit or at least the subject-matter of it which is not permissible. Mufti Muhammad Idrees, the learned counsel for the respondent-petitioner on the other hand argued that according to the well-settled legal position, leave to amend the pleadings has always been liberally granted by the Court in order to do complete justice between the parties. He contended that by the proposed amendments all that the petitioner herein has sought is to add to the prayer of declaratory decree another prayer for the grant of consequential relief which according to him would neither change the nature of the suit nor indeed its subject-matter. In support of his contention he has relied on two judgments of this Court: Keramat A.I v. Muhammad Yunus Haji and others (PLD 1963 SC191) and Syed Akhlaque Hussain and another v. Water and Power Develop--ment Authority, Lahore (1977SCMR284).
3. There seems to be force in the contention of the learned counsel. In the plaint filed by him, the petitioner had alleged that he was entitled to 42,000 a. Of cut and sawn timber, which the appellant Government had illegally confiscated, and consequently he prayed for the grant of declaratory decree accordingly. However, the trial Court as well as the High Court both seem to have misconstrued his claim as if he had also prayed for the grant of consequential relief.
4. Therefore. Proceeding on this basis his suit was decreed for declaration as well as for the consequential relief, namely, the value of 48,305 a. Of timber amounting to Rs. 94,933.37. It is conceded before us that on the said amount he had, in compliance with the directions of the trial Court, made up the deficiency of Court-fee Stamp within the prescribed period.
5. Upon these facts, we agree with the learned counsel that if this application is allowed, it would not tantamount to changing the character or the subject-matter of the suit. Furthermore, the two judgments of this Court, on which he has relied, would seem to support his contention that in order to do complete justice in a case the Court has always liberally allowed the parties to amend their pleadings. Therefore, had the matter rested there, this application would have been readily granted. But there is one difficulty in the way of the petitioner. In the plaint filed by him he had claimed to be entitled to 42,000 a. Of timber. But the learned trial Judge, in view of the admission made in the written statement filed by the appellant Government, had decreed his suit for 48,305 a.
6. Although, he had neither amended his plaint accordingly nor indeed had he made any application in, that behalf. Now in view of the well-settled legal position, this action of the learned trial Judge was wholl illegaly : See Fazal Din and others v. Milkha Singh (AIR 1933 Lah.193).
7. Even otherwise, the claim of the petitioner for 48,305 a. Is factually incorrect. On the record of this case there is extant a report of the Committee, which was specially appointed to probe into the entire contractual operation of the petitioner herein, in which it is said that on the spot inspection of the goods belonging to the petitioner the entire quantity discovered was 43,310 a. And not 48,305 a.
8. Now according to the report in question the said inspection had been carried out in the presence of the petitioner herein to which he seems to have taken no objection at any stage B of the proceedings. In this view of the matter, therefore, and allowing for the marginal error in calculation, the said figure calculated by the Committee would seem to approximate with the figure of 42,000 a. Of timber claimed by the petitioner in his suit. From this it would, therefore, follow that the petitioner can only be allowed to amend his plaint to this extent that by way of consequential relief he may pray for the grant of money decree against the appellant Government for 42,000 a. Of timber only.
9. This petition is accordingly allowed and it is directed that the petitioner would carry oat the required amendments in the original plaint or else would file on the record of the case an amended plaint within six weeks. In the circumstances of the case, however, the parties would bear their own costs.