Mst. FATIMA RASHEED Versus ABDUL QADIR
ORDER
ZAFAR AHMED RAJPUT, J.--- The Petitioner in this Constitutional Petition is Defendant No.2 in Civil Suit No.844 of 2022 on the file of 1st Senior Civil Judge, Malir at Karachi, instituted by Respondent No. I/Plaintiff, claiming to be the lawful owner of the immovable property viz. House No.R-2, measuring 120 square yards, 'Paradise Homes', Sector 13-A, KDA Scheme 33, Gulzar-e-Hijri, Karachi ("subject property") by virtue of a "Sale Deed" registered on 11.01.2012 with the Sub-Registrar Gulshan-e-Iqbal Town-II, Karachi at No.159. Defendant No.1 in the Suit (Muhammad Saleem Rasheed, who has not been made party/respondent in the instant Petition) is the nephew while Defendant No.2 is niece of the Plaintiff. It is the case of the Plaintiff that since he is settled in Singapore, he appointed the Defendant No.1 as his attorney vide registered GPA, dated 11.01.2012, who in collusion with Defendant No.2 and his accomplices got the possession of the subject property illegally and transferred the same on the name of defendant No.2 through a registered Sale Deed, dated 14.04.2022, executed by him as attorney of the Plaintiff; hence, the Plaintiff filed the Suit for cancellation, declaration, possession, mesne profit, damages, mandatory and permanent injunction.
2. On being served with summons, the Defendants Nos.1 and 2 jointly filed their written statement on 30.09.2022. Thereafter, on 16.03.2024, they filed an Interlocutory Application ("Application") for allowing them to file a fresh written statement. The Trial Court, after hearing the learned counsel for the parties, dismissed the Application, vide order dated 08.05.2024. Against that, Defendant No.2 preferred Civil Revision Application No.49 of 2024, which was heard and dismissed by the Additional District Judge-III, Karachi-Malir, vide order dated 18.09.2024, with costs. It is against the said orders of the Courts below that the instant Constitutional Petition has been preferred by Petitioner/Defendant No.2.
3. Learned Counsel for the Petitioner/Defendant No.2 has contended that the previous counsel of the Defendants Nos.1 and 2, with mala fide intention and without consultation, submitted the written statement damaging their defence version; hence, they maintained the Application. He has further contended that the Courts below have misread and misconstrued the facts of the case and, consequently, passed the impugned orders, which are not sustainable in law.
4. We have heard the learned counsel and have perused the materiel available on record.
5. The Application was filed before the Trial Court on behalf of the Defendants Nos.1 and 2, with the supporting affidavit of Petitioner/ Defendant No.2 under section 151 of the Civil Procedure Code, 1908 ("Code"). The provisions of section 151 of the Code relates to the inherit power of a civil Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It has been enacted by the Legislature conferring authority on the civil Court to meet any unforeseen eventuality and to do justice in a case where injustice or unbearable hardship would be caused if the remedy sought is not provided and/or where there is no express provision available in the Code to remedy the wrong. The sense of law on the point, therefore, is that the Court may adopt any procedure and may pass order to secure the ends of justice; however, where specific provisions exist, general or residuary powers could not be resorted to. In other words, inherit power of the Court exists only where there is no express provision of law applicable to the case. It follows, therefore, that where there are express provisions of law applicable to a case or to meet any unforeseen eventuality, there is no inherent power in the Court to override them.
6. Order VIII, Rule 1 of the Code relates to the filing of written statement; hence, in the instant case, the written statement that had already been filed by the Defendants Nos. 1 and 2 was one filed under Order VIII, Rule 1. It cannot be said that Order VIII, Rule 1 would apply for the substitution of a fresh written statement in the place of the one filed already. There is no provision in Code to enable the Court to permit the substitution as a whole of one written statement for another already filed.
7. The written statement filed by the Defendants Nos. 1 and 2 consists of nine pages. It was filed on 30.09.2022 with the signatures of both the said Defendants and their counsel, with supporting affidavit of Defendant No.1. Later, on 16.03.2024, they filed the Application after passing of more than one and half year when the issues had already been settled and the evidence of Plaintiff's side recorded, and the matter was fixed before the Trial Court for recording evidence of defendants' side. Under Order VI, Rule 17 of the Code, the Court is empowered to allow either party to alter or amend pleadings such terms as may be just, for the purpose of determining real questions in controversy between the parties. This is the specific and express provision of law exists in the Code and applicable to the case of the Petitioner, which cannot be overridden under inherent power of the Court under section 151 of the Code. However, the said provision has not been resorted to by the Petitioner.
8. For the foregoing facts and reasons, we do not find any illegality, irregularity or errors of jurisdiction in the impugned orders of the Courts below requiring any interference of this Court by exercising power under subparagraph (ii) of paragraph (a) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Hence we dismiss this petition in limine with listed application.
9. Above are the reasons of our short order dated 04.12.2024.
SA/F-6/Sindh Petition dismissed.