SHAHEEN HASAN Versus GRINDLAYS BANK, P.I.C.

The above application has been filed by the plaintiff seeking amendment in the plaint.

2. The plaintiff had entered into agreement dated. 10‑12‑1983 with the defendant. for purchase of property; bearing Survey No.47‑B, Port House Road, Lalazar, Karachi, for a sum of Rs.3,2(X),000 out of which a sum of Rs.3,20,000 was paid as earnest money at the time of execution of agreement. Subsequently, the defendants terminated the above agreement by their letter dated 1.8‑12‑1984 and forfeited the amount received by them from the plaintiff. The plaintiff challenged the aforesaid termination of the agreement and forfeiture of the amount by filing the present suit for declaration that the termination was illegal the forfeiture of the earnest money was mala fide and for recovery of the earnest money and Rs.8,00,000 as damages.

3. The plaintiff, on 25‑4‑1988, filed C.M.A. No.2713/88 for amendment of the plaint. When the said application came up for hearing on 6‑8‑1989, it was found to be vague inasmuch as it did not specify the amendment sought to be made in the plaint although in the affidavit filed in support of the application it was stated that the suit was meant to be for specific performance. At the request of the advocate for the plaintiff he was allowed to re‑constitute the application.

Consequently, the plaintiff has filed the above application, primarily seeking amendment in the prayer clause by incorporating the prayer for specific performance of the agreement dated 10‑12‑1983 and in the alternative for recovery of the earnest money and damages. Amendment has been also sought in the title of the plaint and para 25 thereof in consonance with the proposed prayer cause..

It is stated in the affidavit that the suit was drafted hurriedly by the advocate and the relief for specific performance of the agreement in question had been, mistakenly and inadvertently left out to be mentioned specifically in the plaint, although the very purpose of the suit was to claim specific performance of the contract and the damages only by way of alternative relief. The said mistake was bona fide on the part of the advocate who had drafted the plaint and unless the plaint was allowed to be amended, the plaintiff would be seriously prejudiced. 1t is stated that the amendment is based on the same cause of action and it does not alter the character of the suit.

The defendants have filed their counter‑affidavit in which they have denied the aforesaid averments made in the affidavit of the plaintiff.' It is further stated that the plaintiff never intended to conclude the transaction, was not interested in specific performance of the contract and the said plea had been raised as an afterthought with ulterior motives. The plaintiff had intentionally relinquished and waived claim for specific performance of the contract. The prayer for specific performance was barred by law. It is stated that the amendment will change the fundamental character and nature of the suit and introduce the new cause of action which is not permissible and the mistake of the advocate cannot be made a ground for amendment of the plaint to fill up the lacuna. Legal right accrued to the plaintiff cannot be taken away by way of amendment of the plaint.

4. I have heard Mr. Azhar Ali Siddiqui, learned Advocate for the plaintiff and Mr. Ismail Merchant, learned Advocate for the defendant.

The learned counsel for the plaintiff contended that the relief sought to be added in the plaint is based on the same cause of action, namely, the termination of the contract by the defendant and will not change the character of the suit. The omission of the prayer for specific performance was due to mistake. He further urged that the amendment cannot be refused merely because the limitation for filing the suit for specific performance has expired.

He relied on the following cases in support of the above submission:‑‑

(i) Promatha Narayan Bose v. Nowsherali Bepari (PLD 1951 Dacca 33).

(ii) Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345).

(iii) Keramat Ali v. Muhammad Yunus Haji (PLD 1963 SC 191).

(iv) Ahsan Kausar and others v. Ahmad Zaman Khan and others (1986 SCMR 1799).

The learned counsel for the defendant contended that: (1) the amendment will change the nature and character of the suit, (2) the relief sought is barred by time, (3) the plaintiff having chosen the relief for damages and omitted to sue for specific performance, cannot be allowed to seek the aforesaid relief under Order II, Rule 2, C.P.C., (4) amendment is being sought with mala fide intentions and will cause prejudice to the defendant, and (5) the amendment sought is inconsistent with the plaint inasmuch as the plaintiff having disputed the title of the defendant in respect of the property cannot sue for specific performance in respect of the same.

The learned. counsel for the defendant in support of his contentions has relied upon the following authorities:‑‑

(i) M. Saeed Sehgal v. Kazi Khurshid Ahmed (PLD 1964 SC 598).

(ii) State Life Insurance Corporation of Pakistan v. Wali Muhammad Akbarji and others (1985 CLC 2865).

(iii) Muhammad Essav. Mst. Haseena Begum (1987 CLC 1723).

5. Order VI, Rule T7, C.P.C. provides that the Court may at any stage of the proceedings allow either party to alter and amend his pleadings and all such amendments shall be made as may be necessary for the purpose of determining the real questions its controversy between the parties.

In the case of Ghulam Bibi and others (supra), the order passed by the Lahore High Court refusing the amendment sought to convert a suit for declaration as to ownership of the suit land, into a suit for specific performance of contract of exchange involving the suit land, came up for consideration before the Supreme Court. While interpreting above Rule 17, it is observed at page 352 of the report that once the Court decides that the amendment is necessary for determines the real question of controversy , the Court is required by law not only to allow an application made by the party in that behalf but is bound to direct the amendment for the said purpose. It becomes the duty of the Court to permit the amendment.

It is then observed as under:‑‑

"What has been stated above is, however, subject to a very important condition that the nature of the suit, in so far as its cause of action is concerned is not changed by the amendment:"

The conclusion is stated at page 353 of the report in the following words:‑‑

"In the light of the foregoing discussion if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change the question of limitation would then remain only of form and not of substance."

On the facts of the case it is earlier observed on the same page, "the so‑called agreement to exchange was, in so far as its contents disclose, in reality a contract of exchange".

6. The facts of the above case of Ghulam Bibi and others are somewhat similar to the facts of the case in hand.

As already noted above, the amendment is being sought only in prayer clause, the change in the heading signifying the suit being for specific performance and corresponding amendment of formal nature in para.25 of the plaint. The amendment that is being sought by the plaintiff would not bring any change in the cause of action but on the contrary the relief that is sought to be incorporated is based on the same cause of action, that is, termination of agreement by the defendant, as the aforesaid act on the part of the defendant coupled with the attending circumstances, has provided cause to the plaintiff to sue the defendant not only for damages but also for specific performance.

In the case of Ahsan Kausar and others (supra), it has been specifically observed that merely introducing an additional prayer in the suit without changing the substance and character of the cause of action, set out in the plaint, cannot be refused at any stage. Referring to the aforesaid case of Mst. Ghulam .Bibi and others (supra), it was observed that delay alone in applying for amendment or expiry of period of limitation is no ground for refusing amendment in the plaint. Similarly in the case of Karamat Ali (supra), it was observed that Court has power to allow amendments even where a legal right has accrued by lapse of time, if the special circumstances of the case overweighed such consideration.

In Ali Hussain v. Late Ali Ahmad Khan Warsi 1983 SCMR 1178, the plaintiff had filed suit for declaration and recovery of money and subsequently sought additional relief of possession under Order VI, Rule 17, C.P.C. The Court observed that the addition of the relief of possession in the suit did not in any manner change the character of the suit or introduce any new cause of action. It was also observed by their Lordships after reference to the case‑law that the Court has full power to allow such amendments even where the legal rights had accrued by lapse of time, if the special circumstances of the case overweighed such consideration.

The learned counsel for the defendant referred to the observations made in the case of M. Saeed Sehgal (supra), wherein their Lordships refused the amendment in the plaint in respect of a claim barred by time. Such was not the only reason for refusal. In the facts of the said case the High Court had asked the plaintiff to amend his plaint, if he so desired but the said opportunity was not availed. Therefore, their Lordships made following observations:‑‑

"We do not think that we would be justified in allowing him this facility at this stage after he had declined to avail of the suggestion made by the High Court, not only because such a suit for damages for breach of the contract of 1944 will now be clearly barred by time but also because the right itself of the appellant to claim such damages is not free from doubt:"

In the above case there were circumstances which did not justify grant of amendment for incorporating the relief, existence whereof was not free from doubt. In so far as the present case is concerned, the execution of contract to sell the property, to the plaintiff is not disputed. On the contrary the principles laid down in the cases of Ghulam Bibi and others, Karamat Ali and Ahsan Kausar and others are more appropriately applicable to the facts and circumstances of this case.

7. In the present case, the relief prayed to be incorporated in the plaint by way of amendment can be consistently maintained on the facts and circumstances already stated in the plaint and is thus based on the same cause of action, which fact by itself is sufficient to outweigh the consideration of limitation and it is found that the proposed amendment will not change the nature or character of the suit. The circumstances of this case sufficiently indicate that the omission of the prayer for specific performance of the contract was due to bona fide mistake and inadvertence. The plaintiff is, therefore, entitled to exercise of discretion in her favour. It will be apt and appropriate to note the following observation made in the case of Ghulam Bibi (ibid):‑_

"It has often been ruled in recent years by the Superior Courts of Pakistan that the rules of procedure are meant to advance justice and to preserve, rights of litigants and they are not meant to entrap them ' into blind corner 'so. as to ' frustrate ' the performance of law and justice.

There, is no likelihood of any prejudice being caused to the defendant for the reason that if the plaintiff fails to establish his case with regard to recovery of damages, the reason will prevail to' refuse the specific performance also.

8. Without force equally is the submission that the amendment has been sought with mala fide intentions, as it is inconsistent with the averments made in the plaint denying the title of the defendant. The plot in dispute has been acquired by the defendant from KPT with restricted rights and at one stage the plaintiff having come, to know about the aforesaid limited rights of the defendants, found herself to have been defrauded. In any event if the plaintiff succeeds, she cannot ask for conveyance of better title to her than what is vested in the defendant. Under such circumstances I do not find any inconsistency as contended or any mala fides on the part of the plaintiff in seeking the amendment of the plaint.

9. The contention of the learned counsel for the defendant that the plaintiff having omitted to sue for specific performance cannot be permitted to incorporate such relief as she stands debarred under Order II, Rule 2, C.P.C. on the face of it is without any substance. Order 11, Rule 2(2), C.P.C. reads as under:‑‑

Relinquishment of part of claim. ‑‑ (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished."

The term afterwards refers to second or subsequent suit and the said rule bars the party from suing for such relief, for which he omitted to sue, without seeking the leave of the Court. The said rule will not be applicable B where omitted relief is sought to be incorporated in the pending suit. In case the amendment is allowed, as observed in the case of Promatha Narayan Bose (supra), the amendment shall be deemed to have been incorporated in the suit, at the time of institution of the suit.

10. Before parting with the order, it would be just to refer to the other cases relied upon by the learned counsel of the defendant.

In the case of State Life Insurance Corporation, Saleem Akhtar, J (now Judge of the Supreme Court) refused to allow amendment for incorporation of additional recovery claim, as it was barred by time and the request for amendment was found to be mala fide and dishonest. In the said case the plaintiff had settled the dispute with defendants who had paid cost of the suit to the plaintiff, and subsequently the plaintiff tried to wriggle out of the settlement and set it at naught and to that end in view sought 'amendment in the plaint with mala fide motive.

In the case of Muhammad Essa amendment was sought for addition of prayer for possession of two shops in possession of the tenants, without joining them as party and also for second room in the house in dispute. When the appeal came up for hearing, the Advocate for the appellant dropped the first part of the prayer and sought relief only in respect of the second room in the disputed house. The learned Judge refused to grant the amendment, mainly for the reason that the alleged cause of action in respect of the second room had accrued to the appellant several years after the filing of the suit.

In the case of Chaudhry Muhammad Sharif v. Afsar Textile Mills Limited and another 1985 SCMR 1865 the claimant applied for amendment in reference application filed by him under section 18 of the Land Acquisition Act (I of 1894), but the amendment was refused as it was found that in view of the provisions of the aforesaid Act such amendment was not permissible even at the stage of judicial determination of the dispute.

The aforesaid cases do not in any way support the submissions of the learned counsel for the defendant.

The application, therefore, is allowed subject to payment of cost of Rs.2,500.

A.A./S-886/K Application accepted