The petitioner through the instant petition questioned the order dated 17-11-2001 of the learned District Judge whereby he dismissed the appeal filed by the petitioner and thus upheld the order dated 13-6-2000 of the learned trial Court.
2. The learned counsel appearing on behalf of the petitioner by placing reliance on the case of Mst.
Ghulam Bibi and others v. Sarsa and others (PLD 1985 SC 345) contended that the form of suit would be immaterial if the facts mentioned therein disclose the cause of action, and, therefore, it cannot constitute a ground for rejection of plaint, moreso when on amendment can well be sought.
3. As against that the learned counsel appearing on behalf of the respondents contended that where the petitioner instead of instituting a suit for a specific performance of contract instituted a suit for declaration after the expiration of period of limitation prescribed therefore, under section 113 of the Limitation Act, the trial as well as the Appellate Court committed no legal or jurisdiction error, therefore, the impugned orders merit no interference. The learned counsel to support his contention placed reliance on the case of Mst. Kalsoom (Fatma) v. Wazir Ali and 13 others (1991 MLD page 1810). The learned counsel by placing reliance on the case of Mst. Imam Hussain v. Sher Ali Shah and others (1994 SCMR 2293) contended that belated attempt to seek amendment in the plaint can be declined if the same was made after the expiration of period of limitation prescribed for a suit for the specific performance of contract.
4. I have gone through the record and carefully considered the submission of the learned counsel for the parties.
5. It is by now well-settled that amendment in pleadings cannot be refused it this is emanating from the facts mentioned in the plaint especially when it does not tend to change the cause of action. No doubt the petitioner primarily instituted a suit declaration but later on when he came know that the form of suit was not proper and that prayer for specific performance of contract was essential for its success, he accordingly made an application for amendment in plaint which could not have been refused by the Courts below particularly when there was nothing on the record to show that it was motivated by any mala fide and that when it emanated from the same bundle of facts narrated in the plaint constituting the cause of action in the suit. A similar proposition was dealt with in a quite befitting manner by the Supreme Court in the case of Mst. Ghulam Bibi v. Sarsa Khan (supra) whose relevant paragraph reads as under: "What has been stated above is, however, subject to a very important condition that the nature of the suit insofar as its cause of action is concerned is not changed by the amendment whether it falls under the first part of Rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened it the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. Instead of declaration etc. And secondly, mere was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualizes is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualizes the award of adequate compensation in that, the amendment has to be allowed in such manner, and on such terms as may be just. "
6. A perusal of the above quoted paragraph would reveal that where the cause of action does not change the main substance and nature of the suit, the question of limitation would become only the question of form rather than of substance.
7. Since there is nothing on the record to show that application for amendment of plaint, though belated, was motivated by the mala fide no fetish of technicalities can be made to an extent that the purpose behind them is relegated to oblivion and only they are allowed to reign supreme, moreso when there only utility is to provide a stepping stone rather than a stumbling block in the way of administration of justice. It would, therefore, be a clear-cut case of failure of exercise of jurisdiction. The judgments cited at the bar by the learned counsel for the respondents in the light of foregoing discussion, being distinguishable have no relevance to the case in hand.
8. For the reasons discussed above, this petition is allowed, the impugned orders are set aside, the amendment asked for in the plaint is allowed and the case is sent back to the learned trial Court to proceed afresh in accordance with law. The parties are directed to appear before the Court concerned on 13-5-2003.