FAQIR MUHAMMAD Versus ADDITIONAL DISTRICT JUDGE, TOGA TEK SINGH

The petitioner Faqir Muhammad has moved this Constitutional petition praying therein that the impugned order dated 7‑12‑1987 passed by the learned Additional District Judge, Toba Tek Singh, may be declared to be without lawful authority and of no legal consequence.

2: The case in brief is that respondent No.2 Muhammad Malik filed a suit for declaration before the learned Senior Civil Judge, Toba Tek Singh, against the present petitioner praying therein that the orders passed by the Assistant Commissioner, Toba Tek Singh and the Commissioner, Sargodha Division, Sargodha, dated 28‑9‑1963 and 31‑1‑1967 may be declared to be without lawful authority and of no legal authority and further the same shall not bind him in law. The vires of Mutation No. 254 dated 20‑4‑1973 based on the above‑noted two orders of the Revenue Authorities are also challenged. It is mentioned in the plaint that the petitioner and respondent No.2 are the real brothers and that their father was allotted land under Ejected Tenants Scheme. Allegedly the petitioner by taking benefit of the old age and ignorance off' his father moved a. petition before the Collector, Faisalabad for the grant of permission to obtain proprietary rights, which was allowed on 22‑7‑1963. Later on an 'order in that behalf was passed by the Assistant Commissioner, Toba Tek Singh on 28‑9‑1963. it is further alleged that after attested on 9‑12‑1965 in accordance with Law. Chak No. 5.'..0/Thereafter, respondent No.1 approached the petitioner for mutation of inheritance of the disputed land, who disclosed that the disputed land was exclusively owned by him. The respondent No.2 applied for review of the abovesaid mutation but the same was rejected by the Commissioner on 31‑1‑1967. Petitioner has filed his written statement and has controverted the factual allegations levelled in the suit. Respondent No.2.moved an application under Order VI, Rule 17, C.P.C. for permission to amend his plaint, vide Annexure 'C'. This application was contested by the present petitioner by filing a reply vide Annexure 'D'. The learned Civil Judge on 5‑9‑1987 proceeded to dismiss the application vide order Annexure 'E'. The respondent No.2 went in revision, which was heard and accepted by the learned Additional District Judge on 7‑12‑1987.

3. it is contended by the learned counsel for the petitioner that the proposed amendment has altogether introduced a new case and has changed the very character of the suit, which is not possible in law. It is next argued that the impugned order passed by the learned Additional District Judge is violative of the provision, of law contained in Order VI, Rule 6, C.P.C, which law lays down that the particulars of fraud have to be mentioned in the plaint itself. Learned counsel, on the basis of it, states that at this stage no opportunity could be allowed to the respondents to give the particulars of fraud. Learned counsel maintained that the first order passed by the learned Civil Judge is based on law and facts and as such there was no legal justification for the revisional Court to interfere in the matter. Learned counsel for the respondents submitted that the impugned order is perfectly legal one inasmuch as question of fraud was pleaded by him and that he wanted to give the particulars of that fraud by introducing the amendment in his pleadings. 1t is next argued that the impugned order is an interlocutory order, which cannot be assailed in the exercise of Constitutional jurisdiction before this Court. The learned counsel maintained that the petitioner shall be at liberty to challenge the vires of the interim order in case the matter is decided against him before a competent forum. Learned counsel for the respondents has placed reliance on the rule laid down in Muhammad Hussain v. District Judge, Sheikhupura etc. (1981 Law Notes (Lahore) 456), Mir Asad Ali v. Additional Commissioner Land, Hyderabad etc. 1987 M L D 272 ), Karam Hussain v. Abdul Karam and 2 others (1985 C L C 794), Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 S C M R 1925 and Javed Iqbal and another v. District Judge, Jhang and 2 others (P L D 1987 Lahore 9). The learned counsel for the respondent has placed specific reliance on the rule laid down in Mir Ghaus Bakhsh Bizenjo v. Chief Election Commissioner of Pakistan (P L D 1969 Karachi 662) and has contended that he was well within his legal rights to give the particulars of fraud. The learned counsel for the petitioner has placed reliance on the rule laid down in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 P.C. 249) and Mian Iftikhar‑ud‑Din and Arif Iftikhar v. Muhammad Sarfraz and others (P L D 1961 Lahore 842).

4. I have heard the learned counsel for the parties and have perused the record. The learned Additional District Judge, Toba Tek Singh, while disposing of the revision of the respondent held that the evidence in the case is still to be recorded and that issues arising out of the pleadings of the parties were framed in the recent past. The learned revisional Court candidly observed that the real question in controversy between the parties has 'to be resolved only when the necessary amendment in the suit is allowed. The admitted position in the case is that the respondent mentioned question of fraud in the suit and that he simply wanted to elaborate the pleadings by giving specific particulars in respect of the fraud. Therefore, in my considered view, the mere fact that respondent has been allowed permission to give particulars of the fraud already mentioned by him in the suit will not at all change the very nature of the suit. Rule 17 of Order VI, C.P.C. gives powers to the trial Court to allow the appropriate amendments in the pleadings of the parties in order to determine the real questions in controversy between the parties. Unless and until the necessary particulars of fraud are given, I am sure, the question pertaining to fraud cannot be determined in the case. Therefore, the learned revisional Court has passed the order on 7‑12‑1987 lawfully and judiciously. Additionally it is well‑settled that no writ could be issued in aid of injustice. Reliance in that behalf can be placed on Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan, Claims Commissioner, Lahore and others (P L D 1965 S.C. 269). The learned revisional Court's order dated 7‑12‑1987 appears to be just and proper. He has simply allowed the respondent to make necessary amendments in the pleadings and admittedly in the case the evidence has not commenced so far. In view of this matter the impugned order is with lawful authority and there is nothing wrong with it. I accordingly proceed to dismiss the writ petition leaving the parties to bear their own costs.

AA./F‑60/L‑, Petition dismissed.