RAHMAT HUSSAIN JAFFERI, ).--- This revision application is directed against the judgment dated 8.11.1999, passed by the learned IV.Th Addl. District Judge, Karachi (South), in Civil Appeal No. 100/1999 (Muhammad Sadiq v. Saifuddin Siddique) by which the learned Judge after setting aside the judgment and decree of the Trial Court allowed the respondent to amend the plaint. The applicant was dissatisfied with the said judgment, therefore, he has preferred the revision application to challenge the legality of the same.
2. The facts giving rise to the present application are that on 16.10.1994 the respondent had filed a suit for injunction claiming to be the co-owner in equal shares with the applicant in respect of Shop bearing No. B-1, constructed on Plot No. G-13, on Plot No. 31/4, PR-2, Castle Street, Off. Victoria Road, PS Preedy, Karachi (hereinafter referred to as the "said Shop"). It is alleged by the respondent in the Paint that the applicant was dis-possessing him from the said shop which is in his occupation since 1985, therefore, he had flea the suit with the prayer that the applicant may be restrained from dis-possessing him without due process of law.
3. The applicant was served and he filed the written statement in which he challenged the ownership of the respondent by stating that the respondent has no right, title or interest in the said shop as the said shop is exclusively owned by him but the name of the respondent was added in the sale-deed due to threat of the respondent. He denied the allegation of dispossessing the respondent from the said shop. He also took some legal pleas in the written statement.
4. Out of the pleadings of the parties, the Trial Court had framed the following issues:- ,(a) Whether the suit is maintainable under the law?
(b) Whether any cause of action. Has ever accrued in favour of the plaintiff for tiling the present suit?
(c) Whether the defendant was in possession of the disputed property since 21.5.1985 till 15/16.10.1994?
(d) Whether the defendant was forcibly dispossessed from the disputed shop by the plaintiff on 15/16.10.1984?
(e) Whether the agreement dated 26.5.1994 was executed by the parties and it is binding upon them?
(f) Whether the plaintiff is entitled for any relief in respect of disputed property?
(g)' What should the decree be?
5. After going through the evidence led by the parties on the above issues, the Trial Court came to the conclusion that the title of the respondent was under cloud and was disputed, therefore, the suit for injunction was not maintainable but the suit for declaration of his title and share in the said Shop should have been filed. Consequently, the suit was dismissed.
6. The respondent filed the Appeal before the District Court, which was decided by the iVth Addl.
District Judge, Karachi (South) under the impugned judgment as mentioned above.
7. 1 have heard the parties' Advocates, perused me record of this case very carefully and applied my mind to the facts of the present case.
8. The learned Advocate for the applicant has argued that the Appellate Court was not justified in allowing the amendment in the Plaint as the same has changed the complexion of the Suit from the suit for Injunction to the suit for Declaration and Injunction. He has further argued that the application was filed after the decision of the Trial Court. He has relied upon the case of Baboo Khan v. Municipal Committee, -Murree and another (1969 SCM R 29). In this authority it has been held that amendment at stage of Appeal seeking to introduce completely new case on which no evidence had been led and parties had never joined issue at earlier stage is not permissible.
9. On the other hand, the learned Advocate for the respondent has argued that an application for amendment of the Plaint can be filed at any stage and even at the stage of Supreme Court; that by allowing the application no new case has been introduced but the facts are already available on the record and evidence has been hed on the question of ownership of the respondent, therefore, the complexion of Suit has not been changed. He has further argued that no new cause of action has been introduced through the amendment, as such the Appellate Court was justified in allowing the amendment. He has supported the impugned judgment and prayed for the dismissal of the revision application.
10. The amendment in the pleadings can be made under Order VI, Rule 17, CPC, which reads as under:--
17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either .Party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
11. A perusal of the above provision of law, deify shows that it is divided into two parts: First Part is discretionary whereas the Second Part is mandatory. Reliance is placed on the case of Faiz Muhammad and others v. Jawaid and others (1996 SCM R 1959). Under the First Part if the Court comes to the conclusion at any stage of the. Suit that the amendment is just and proper and which will go to real matter in controversy then under the Second Part the amendment should be allowed, provided the other party is not prejudice. In this connection reliance is placed on the case of Atlantic Steamers Supply Company v. M. V. Titisee and others (1993 SC 88).
12. In the present case the respondent has prayed for injunction on the ground that he was co- sharer in the said Shop, as such the respondent had based- his claim on the right of ownership in the said Shop. No other right except the Fight of ownership has been claimed by the respondent in the Suit. The said averments made in the Plaint have been specifically denied by the applicant in his written statement by stating that the respondent has no right, title or interest in the said Shop.
As such the title of the respondent was denied by the applicant. If the said ownership rights of the respondent are taken out then only a prayer for injunction as a consequential relief would fail.
13. From the above averments in the pleadings it is clear that the real controversy in the suit is the ownership of the said Shop.
14. It is pertinent to point out that the evidence is led after framing of issues. The stage of framing of issues is very important in the trial of civil suit because at that stage the real controversy between the parties are summarised in the shape of issues and narrowing down the area of conflict and determining where the parties differ and then the parties are required to led evidence on the said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove the issues and not the pleadings as provided by Order XVIII, Rule 2, CPC. The Court is bound to give decision on each issue framed as required by Order XX, Rule 5, CPC.
Therefore, the. Judges while framing the issues should pay special attention to Order XIV of the CPC and give in-depth consideration to the pleadings etc. For the simple reason that if proper issues are not framed then entire further process will be meaningless which will be wastage of time, energy and would further delay the final decision of the Suit. The issues are framed after the admission and denial of the parties are recorded as per Order X of CPC.
1 5. Order XIV of Code of Civil Procedure, 1805 deals with settlement, amendment etc., and determination of suit on issues of law and facts or on issues agreed upon.
16. A perusal of Order XIV, Rule 1, CPC shows that there are two kinds of issues: (1) issues on facts and (2) issues of law, it further provides that on the first hearing of the Suit the Court is required to go through the pleadings and after examination of the parties in order to ascertain on what material proposition of facts and law the parties are at variance and then issues are framed on each material proposition of facts and law, affirmed by one party and denied by other party, on which the right decision of the case appears to depend. If no defence is pleaded by the defendant at the first hearing then the Court is not required to frame the issues. As such it is one of the duty of the Judge himself to frame the issues properly after going through the above-mentioned material and examination of parties. Under sub-rule (2) the Court has been empowered to dispose of the suit on the issues of law only, if the Court forms an opinion that the suit can be disposed of on -the said issues then it shall try those issues first and can postpone the settlement of issues of facts until after the issues of law are determined. ,Sub-rule (3) deals with the material on which the issues can he framed. Under this Rule three categories of material can be examined by the Court: (i) allegations made on oath by the parties, or by any persons present on his behalf; or made by the pleaders of such parties, (ii) allegations made in the pleading or in answers to interrogatories delivered in the suit, (iii) the contents of documents produced by either party. Under sub-rule (4) the Court has been empowered to postpone the framing of the issues if Court readies to the conclusion that issues cannot be correctly framed without examination of some persons not before the Court and/or without inspection of some documents not produced in the suit. The Court may adjourn the suit and then compel the attendance of such persons or the production of such documents by the person in whose possession or power it is, by issuing summons or other process.
The Court after examining the said person and perusing the documents, frame the issue's. Under sub-rule (5) the Court has been 'empowered to amend the issues before the passing of decree or frame additional issues as it think fit and all such amendments and additional issues may be framed if they are necessary for determining the matter and controversy between the parties and the Court has also been given power to strike out any issue that appears to be wrongly framed or introduced. Under sub-rule (6) the parties to the suit have been authorised to enter into an agreement in writing as to a question of fact or of law to be decided between them. In such situation they may state the same in the form of an issue Such agreement should also specify that upon the finding of the Court in the affirmative or negative of such issues the Court may direct a sum of money etc., property specified in the agreement to be delivered to one party by the other or one party shall do or abstain from doing any act specified in the agreement relating to the suit.
Under sub-rule (7) the Court has been empowered to decide the issue referred to in sub-rule (6) in the same manner as the issue has been framed by the Court, if the Court is satisfied after making such enquiry that the agreement was made in good faith and then pronounce judgment.
17. In this case when the respondent had alleged that he was owner to the extent of 50% share in the said Shop alongwith the applicant and same has been denied by the applicant in his written statement, then it was incumbent upon the Trial Court to have framed such issue because it was the real controversy between the parties. When the ownership has been claimed by the respondent in the Plaint and denied by the applicant in the written statement, the injunction which is based on such right cannot be properly granted without deciding the point of ownership, then the issue in that respect ought to have been framed as required by Order XIV, Rule 1, CPC. However, when the Trial Court came to the conclusion during the course of writing the judgment, then under sub-rule
(5) of Order XIV, CPC, the Court should have framed the additional issue on the above point before pronouncing the judgment and would have decided the same in accordance with law. As the Trial Court has ignored the provisions of Order XIV, CPC, therefore, the problem has arisen and the suit has further been delayed.
18. From the pleadings of the parties it is clear that the facts were already on the record, the cause of action was already there and no new cause of action has been introduced, the real controversy between the parties is with regard to the ownership of the property, the relevant documents are already produced in the evidence and the parties have led evidence on the point to some extent, therefore, no new case has been introduced in this case and no prejudice has been caused to the applicant in allowing the amendment.
19. Under these circumstances, the Appellate Court was justified in allowing the amendment. The Appellate Court while allowing the amendment has relied upon the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (1985 SC 345), which is applicable in the present circumstances of the case.
20. After considering the material available on record I am of the considered view that there is no illegality or irregularity in the impugned judgment, therefore, the same does not require any interference.
21. The Revision Application is dismissed with no order as costs. CMAs Nos. 125/2000 and 1834/2000 have become infructuous in the light of the above order and are also dismissed.
Re.