' The brief facts out of which the present revision petition arises are that the petitioners-plaintiffs filed a suit for declaration to the effect that they are owners in possession of the land measuring 8 Kanals, 18 Marlas situated in Khasra No,283 in village Jandiala Sher Khan, Tehsil and District Sheikhupura and Mutation No,1500 dated 27-3-1968 by virtue of which Khasra No,788 was included in Khata of respondents Nos.2 to 9, is illegal, void and ineffective upon the rights of the petitioners- plaintiffs. The contents of the plaint further reveal that petitioner-plaintiff further prayed permanent injunction as consequential relief restraining the respondents-defendants from getting possession of the suit-land forcibly or alienate the same to any other person, before the Civil Judge 1st Class, Sheikhupura on 20-4-1994. The respondents-defendants filed written statement, controverted the allegations velled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether mutation of Partition No,1500 dated 27-3-1968 is collusive, against law, without consideration, as such is ineffective qua plaintiff's rights? OPP
(2) If above issue is proved, whether plaintiffs are owners in possession of the suit-land? OPP
(3) Whether plaintiffs have no cause of action for this suit? OPD
(4) Whether plaintiffs are estopped by their words and conduct to file this suit? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether Civil Court lacks jurisdiction to try and decide this suit? OPD
(7) Whether the suit is time-barred? OPD
(8) Relief.
' The learned trial Court dismissed the suit vide judgment and decree dated 16-12-2000. The petitioners-plaintiffs being aggrieved filed appeal before the Additional District Judge, Sheikhupura on 23-12-2000. Petitioners-plaintiffs also filed application under Order 6, rule 17, C.P.C. For amendment of plaint with the following proposed amendment in paras.3 and 4 of the plaint:- {{URDU TEXT}} ' The said application was dismissed by the Additional District Judge, Sheikhupura, vide order dated 10-9-2002. Subsequently, learned Additional District Judge, Sheikhupura dismissed the appeal of the petitioners vide judgment and decree dated 30-5-2003, hence the present revision petition.
2. The learned counsel of the petitioners submits that both the Courts below erred in law to decide the case against the petitioners. He further submits that the land in question was allotted to the predecessor-in-interest of the petitioners namely Ali Ahmad in the year 1952 and Partition Mutation No,1500 whereby rights of the petitioners were extinguished, is against law and facts. He further submits that land in question is evacuee property which coulth never be allotted to Muslim owners.
He further submits that Writ Petition No,766-R of 1980 was filed before this Court "which was accepted by this Court and remanded the case to the Assistant Settlement Commissioner to dispose of the partition proceedings afresh after hearing the parties concerned. Needless to say that the remand proceedings pursuant to the order dated 7-5-1969 are already pending with him".
In view of the aforesaid judgment of this Court, Mutation No,1500 was cancelled and instead of that another Mutation No,880 was sanctioned by Naib-Tehsildar vide order dated 23-3-1985. The learned counsel of the petitioner further submits that Naib-Tehsildar, A.C.II was not vested with powers of A.S.C. And after the repeal of Settlement Laws, only Notified Officer was competent to decide the settlement cases, therefore, Mutation No,880 was against law. He further submits that the First Appellate Court erred in Jaw to dismiss the application of the petitioners for amendment of the plaint, against the spirit of Order 6, rule 17, C.P.C. Wherein wide powers have been given to the Courts to allow the application for amendment keeping in view the real controversy between the parties. He further submits that Naib-Tehsildar was neither competent to treat the land in question as non-evacuee nor could deprive the petitioners of their allotment in the garb of partition proceedings. He further 'submits that Mutation No,1500 was sanctioned in absence of petitioners and without any notice to the petitioners. Subsequently it came to the knowledge of the petitioners that the aforesaid mutation was cancelled by this Court in the said writ petition and consequently, Mutation No,880 was sanctioned by the Naib-Tehsildar without issuing any notice to the petitioners. He further submits that petitioners are penalized by the action of the public functionaries as the Mutation No,880 was sanctioned without notice to the petitioners but this fact was not considered by both the Courts below. In support of his contention, he relied upon Mst.
Arshan Bibi and others v. Maula Bakhsh and others 2003 SCMR 318. He further submits that amendment in pleadings can be allowed at any stage by the Courts even up to the apex Courts. In support of his contention, he relied upon Qazi Nazir-ul-Islam and others v. Khurshid Anwar and others PLD 1968 Lahore 315.
3. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
4. It is admitted fact that petitioners had challenged the vires of the Mutation No,1500 as is evident from the contents of the plaint which was no more in the field, therefore, trial Court was justified to dismiss the suit of the petitioners vide the impugned judgment and decree dated 16-12-2000. It is also admitted fact that the petitioners filed an application for proposed amendment as reproduced above in paras.3 and 4 of the plaint, which reveals that petitioners prayed for amendment in the contents of the plaint and relief to challenge the vires of Mutation No,880 instead of Mutation No,1500 which was dismissed by the Additional District Judge, Sheikhupura, vide order dated 10-9-2002. The question for determination for this Court is whether the First Appellate Court was justified to dismiss the application for amendment or not. In case the contents of the application and plaint are put in juxtaposition then petitioners requested through the application under Order 6, rule 17, C.P.C. To substitute new cause of action, which is not permissible in the eye of law. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Mst. Ghulam Bibi and another v. Sarsa Khan and others PLD 1985 SC 345. The relevant observations are as follows:-- "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. ---All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. ---In most of the other cases the Court disallowed the amendment because it would have changed the cause of action or subject-matter in the lis."
5. In view of what has been discussed above, the order of the learned Additional District Judge, Sheikhupura, dated 10-9-2002 is in accordance with the law laid down by the Honourable Supreme Court in the aforesaid judgment. It is pertinent to mention here that petitioners have challenged the vires of Mutation No,1500 dated 27-3-1968 as is evident from the contents of the plaint, which has already been cancelled and no more in the field as is depicted from Exh.P.2/Exh.P.7 and Mutation No, 880 was sanctioned on 23-3-1985 whereas the petitioners have filed suit on 20-4- 1994, therefore, both the Courts below were justified to dismiss the suit and appeal of the petitioners-plaintiffs. Even otherwise, it is settled principle of law that both the Courts below have concurrently decided against the petitioners, therefore, revision petition has no merit in view of the law laid down by the following reported judgments:-- ' Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341.
' Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488.
' Barkat v. Muhammad Sadiq and others 1990 CLC 1532.
' Habib-ur-Rehman and others 'v. Mst. Waheedan and others PLD 1984 SC 424.
' Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617.
' Muhammad Luqman v. Bashir Ahmad PLD 1994 Karachi 492.
' The judgments cited by the learned counsel of the petitioners are distinguished on facts and law, therefore, are not applicable.
' In view of what has been discussed above, this revision petition has no merit and the same is dismissed.