WAQAR ZAHID KHAN Versus SHER KHAN

This Revision is directed against an order dated 19‑2‑1987 passed by the learned XIIth Civil Judge, South Karachi in Suit No.2505 of 1985 declining the present applicants' application under Order VI Rule 17 C.P.C for amendment of the plaint on the ground that the applicants were not in possession of the suit property at the time of filing of the suit.

2. The brief facts leading to the filing of the above Revision are that the present applicants filed aforesaid suit in which following prayers were made:

"The plaintiff, therefore, prays that (a) all the defendants, their agents, employees, companions, representatives or any person or persons claiming through or under them be restrained from taking forceful possession of the plaintiff's open plot of land allotted alongwith premises bearing No.l/2 P:R 2/3/1, Preedy Street, Kanga Compound, Magazine Line, Saddar, Karachi shown in Reg. D No. 1028 dated 4‑3‑60 and plan dated 7‑1‑60 and from raising any illegal construction Pukka Katcha or putting cabins or open doors of any shop or room towards this plot belonging to the plaintiff.

(b) Any other relief may be granted to the plaintiff under the circumstances of this case.

(c) Cost of the suit be granted to the plaintiff."

While the above suit was pending, she filed aforesaid amendment application on the basis of averment that she was dispossessed by the respondent on 30‑10‑1985 and, therefore, the amendment was necessitated. She prayed for amendment of inter alia the para relating to relief is to include the relief for possession. The learned Civil Judge as observed herein above, had declined the above application. The applicants being aggrieved by the above order have filed the present Revision.

3. In support of the above Revision Mr. S.H. Rizvi, learned counsel for the applicants had urged that it has been consistent view of the superior Courts to allow the amendment for possession in order to eliminate multiplicity of litigation even at appellate stage. He has further submitted that the Court should not be technical while considering amendment application of the nature in question.

On the other hand Mr. Maroof Ali Khan, learned counsel for the respondents has submitted that the very nature of the suit would be changed if the amendment would be allowed in as much as according to the averments in the plaint the applicant was in possession but factually he was not in possession at the time of filing of the suit as indicated from the documents on record. He has further submitted that the proper course for the applicants is to file fresh suit after withdrawing this suit, if the allegation that the petitioner was dis possessed, is correct.

Mr. S.H. Rizvi in support of his above submission has referred to the case Mst. Ghulam Bibi and others v. Sarsa Khan and others, reported in P L D 1985 Supreme Court 345, in which inter alia suit has been held by the Hon' ble Supreme Court that delay alone in applying for amendment on expiry of period of limitation is not fatal. It has been further held that powers of the Court allowing amendment were meant to advance justice and to preserve rights of litigants and they were not meant to entrap them into blind corner as to frustrate purpose of law and justice.

In the above case of the Supreme Court the amendment was allowed to convert a suit for declaration and permanent injunction into a suit for specific performance.

4. In my view the contention of Mr. Maroof Ali Khan that it will change the complexion of the suit cannot be decided at this stage. If factually the applicant has been is possessed on 30‑10‑1985, the amendment can be allowed because the amendment sought relates to A the subject matter of the suit in respect of which the applicant has sought the enforcement of her rights as the owner of the suit property. However, if it is to be found that factually the applicant was not dispossessed on 30‑10‑1985 but in fact was not in possession at the time of the filing of the suit, this may prejudice the respondents if the amendment will be allowed.

I am inclined to allow the amendment subject to all just exceptions and subject to the condition that case the petitioner fails to prove that she was dispossessed on 30‑10‑1985 she will not he entitled to the relief for possession.

The Revision stands disposed of in the above terms with no order as to costs.

H . B . T . /W‑16/ K Order accordingly.