SHAHSAWAR (REPRESENTED BY HIS HEIRS) vs Syed NAJAMUL HASSAN ETC.S

ORDER

KARAM ELAHBEE CHAUHAN, J.-Shabsawar (deceased) (now represented by his legal representative) (hereinafter called the plaintiffs) filed a suit for possession of 11/16 share in the land described in the plaint and also share in the compensation amount of Rs. 58,000 which had been received by Syed Najamul Hassan defendant /respondent for compulsory acquisition of a part of this land by CDA/CVD. The entitlement for the above claim was based on the ground that the plaintiffs were entitled to share in the inheritance of the various propositus mentioned therein.

2. The suit was dismissed by the learned Civil Judge on 6th March, 1971, on the ground the relevant successions in this case were to be governed by Shia Law, whereunder in the presence of daughter of Ahmad Shah the plaintiffs who were far more "distant kindred" had no right to succeed.

3. The plaintiffs/petitioners filed an appeal which came up for adjudication before the learned Additional District Judge, Rawalpindi. Probably feeling difficulty in crossing the finding aforesaid of the learned Civil Judge, the plaintiffs/petitioners filed an application before the learned Additional District Judge for amendment of their plaint under Order VI, rule 17 read with section 107 C. P. C.

Seeking permission try to now plead that Mst. Janat Bibi was not the daughter of Ahmad Shah. The learned Additional District Judge allowed that amendment by a short order dated 24th April, 1973 and consequently accepted the appeal, set side the order of the learned trial Court and remanded the suit to him for fresh trial in accordance with law and in the light of the aforesaid amendment and new factual pleadings.

4. The defendants/respondents filed an appeal being F.A.O. No. 103/173 which brought fruit and was accepted by the High Court on 26th February, 1980, on the ground that amendment at such a late stage of the case was not called for particularly when it was likely to change the whole complex of the case and on which the suit had earlier been filed and tried.

5. The plaintiffs/petitioners have now come up in a petition for special leave to appeal against the same to this Court.

6. Before proceeding further we may mention that the plaintiffs in para. 5 of the original plaint had conceded that Mst. Janat Bibi was the daughter of Ahmad Shah. It may further be pointed out that side by side with the present suit, a cross suit had been filed by Mst. Janat Bibi in which the present petitioners were also parties. In that suit she was described as the daughter of Ahmad Shah and that averment was not denied and was rather admitted by the present plaintiffs. The aforesaid suit of Mst. Janat Bibi ended in a compromise between heirs of Syed Najamul Hassan (deceased)

(respondent No. 1 herein now represented by his legal representatives). In the face of these two admissions on the part of the present plaintiffs we asked the learned counsel as to what were the circumstances on which his clients now wanted to shift their aforesaid earlier position. His answer was that his clients have now learnt from the village that Mst. Janat Bibi was not the daughter of Ahmad Shah. On being asked then whose daughter she was, the learned coL4sel after consulting his client in Court sub--mitted that he could not make any statement an the subject. He further conceded that there was no documentary evidence in the form of any birth entry of Mst. Janat Bibi to support his submission. He also conceded that in the application for amendment of the plaint the precise sources from which the later information had been collected by his clients had also not been mentioned. The suit remained pending in the trial. Court for about 7 years and it is very strange that the petitioners who are quite large in number, did not put forward the plea now sought to be introduced on the factual plane. We are of the view that the plea sought to be introduced was not bona fide and was being put forward simply to prolong an already prolonged litigation. Earlier the plaintiffs wanted to oust Mst. Janat Bibi on the ground that succes--sion should be regulated by Sunni Law. But when they failed in securing that point from the trial Court they then thought of eliminating her by pleading that she was not the daughter of Ahmed Shah.

Obviously such a design could not be allowed to succeed. The plaintiffs had led oral as well as documentary evidence during the trial of the case and none other witnesses said anything doubting the parentage of Mst. Janat Bibi, obviously, because it stood already conceded in the plaint and in the B written statement in the cross suit. The order of the High Court in 'these circumstances is based on sound reasons and the attending facts of the case as highlighted above and does not suffer from violation of any principle of law on the subject of amendment of plaint.

7. The result is that this petition has no merit and is dismissed.