HAJRABAI Versus AFZAL ALI

ORDER

1. Before coming to the present application it would be worth the while to refer to the background of the case. The suit was filed by the plaintiff for specific performance of the contract against the following defendants:‑‑

(1) Afzal Ali Khan.

(2) Mst. Zohra Bai.

(3) Mst. Khadija Bai

2. In the plaint it was stated that the plaintiff had contracted with the defendants for purchase of Bungalow NO.JM 943/5, Clayton Road, Karachi for total consideration of Rs.5,00,000 under agreement dated 27‑2‑1978. In terms of the said agreement a sum of Rs.1,00,000 was payable at the time of execution of the sale agreement, Rs.50,000 on 8‑3‑1978 and balance amount of Rs.3,50,000 at the time of execution of the sale‑deed before the Sub‑Registrar of Properties. However, at the time of execution of the sale agreement, the defendants requested for additional payment of Rs.15,000 and accordingly in addition to Rs.1,00,000 the plaintiff paid additional sum of Rs.15,000 to the defendants on 27‑2‑1978 out of Rs.50,000'which was payable on 8‑3‑1978. It was further stated in the plaint that on 19‑3‑1978, the plaintiff paid to the defendants a sum of Rs.35,00U. Thereafter, notices were exchanged between the parties and on 18‑4‑1978, the plaintiff paid a sum of Rs.25,000 to the defendants.

3. All the three defendants on 5‑3‑1979 jointly filed their written statement in which the execution of the agreement was admitted. The sale consideration, as disclosed in the plaint, was not disputed. The defendants also admitted the receipt of the total amount of Rs.1,75,000 out of the sale consideration, as detailed in the plaint. The defendants, however, took the plea that the plaintiff having failed to perform his part of the contract in terms of the agreement, was not entitled to specific performance of the contract.

4. On 1st April, 1979, the following issues were framed by consent in .r view of the pleadings of the parties: ‑

5. "(1) Whether the plaintiff performed her part of the contract?

(2) Relief?"

6. On 19th May, 1987, defendant No.3, Mst. Khadija Bai filed an application under Order VI, Rule 17, C.P.C. for amendment of written statement. This application was numbered as CMA 2891/87.

7. The amendments that were being sought, were intended to resile from the admissions made in the earlier written statement. The said defendant No.3 died before the aforesaid application for amendment of the written statement could be decided. She was succeeded by Mst. Tasneem Bano, defendant No.3(i) and Quaid Johar, defendant No.3(ii), being daughter and son of the then defendant No.3. Defendant No.2 also expired who was also succeeded by the aforesaid two defendants.

8. The aforesaid application came up before the Court on 4th May, 1989, when the following order was passed: ‑

9. "By consent the L.Rs. of defendant No.3 are permitted to amend the written statement which will be subject to all just exceptions. Amended written statement shall be filed within 15 days. CMA No.2891/87 stands disposed of."

10. Consequently the said two newly‑joined defendants riled their written statement on 16th August, 1989 in which all the admissions made earlier have been given go by. However, on the basis of the pleadings as contained in the amended written statement issues proposed by the said defendants were adopted on 5th May, 1991. On the said date before the issues were adopted by the Court, a, request was made for, time by the learned Advocate for the plaintiff for submitting an application for deletion of certain portions of the written statement. However, for the reasons stated in the said order the said request for grant of time was refused.

11. Under the above circumstances the present application has been filed by the plaintiff praying that the defendants .be not permitted to rely on such contents of the written statement filed by them on 16th August, 1989 which are in conflict with the written statement filed by the original defendant No.3 on 5th March,.1979, with a further prayer that the issues framed on 5th May, 1991 be amended and consent issues framed on 1st April, 1979 may be adopted.

12. I have heard Mr. A.I. Chundrigar for the plaintiff and Mr. Musthaq Memon for the defendants Nos.3(i) and 3(ii).

13. The learned Advocate for the plaintiff has contended that the admissions made earlier in the written statement cannot be nullified and new or inconsistent case cannot be permitted to be set up by the newly joined defendants. Consequently the submission is that the issues adopted on 5th May, 1991 should be discarded and consent issues framed on 1st April, 1979 be adopted.

14. In support of the above submissions, the learned counsel relied on the case of Haji Suleman Ali Muhammad v. Ahmed Ali and another PLD 1982 Karachi 111.

15. The learned counsel for defendants Nos.3(i) and 3(ii) has distinguished the aforesaid authority by pointing out that the present case is not the one where the amended written statement was filed in reply to the amended plaint but the amendment in the written statement was sought by original defendant No.3 and since she had died, the amended written statement was filed by her successors‑in‑interest, in view of the order passed by this Court on 4th May, 1989, whereby the application seeking amendment of the written statement was allowed by consent, subject to all just exceptions. According to the learned counsel in view of the above consent order the plaintiff cannot be permitted to restrict the said defendants to the contents of the original written statement riled by defendant No.3; Mst. Khadija Bai.

16. In so far as the contention of the learned Advocate for the said defendants goes, is correct in that the order was passed by consent but what is important is that it was subject to all just exceptions.

17. The contention of the learned counsel that the said application for amendment of written statement having been allowed by consent order, cannot be now varied, is not correct. The reading of the said order does not show that the said application for amendment of the written statement was allowed. The said order does not state that the said defendants are allowed to amend the written statement as prayed for in the said application, least to say of the alleged consent of the plaintiff .for granting the said application. On the contrary, the above application of Mst. Khadija Bai was vehemently opposed by the plaintiff in her counter‑affidavit filed in reply to the said application wherein reasons were stated in detail rebutting the contentions of the deceased defendant. The consent order, therefore, allowed the said defendants to file amended written statement, subject to all just exceptions. To put it in other words, the defendants were not allowed to file the amended written statement in terms of CMA No.2891/87; but were allowed to file the amended written statement subject to all just exceptions.

18. The words "just exceptions" in the context would mean that the defendants may file the amended written statement containing only such amendments as are permissible under law. If the law be that the defendants cannot be permitted to deviate from the admissions made earlier by their predecessor‑in‑interest, the newly‑added defendants cannot be permitted to so deviate from the earlier written statement, that it would stand nullified or set up altogether a new case.

19. In the case of Haji Suleman Ali Muhammad (supra), the plaintiff had filed a suit for specific performance of contract. The defendants filed their written statement, asserting that they were ready and willing to perform their part of the agreement. The defendants had also filed a suit against the plaintiff for declaration and injunction which was withdrawn. After filing of the written statement, the plaintiff made an application under Order VI, Rule 17, C.P.C. seeking permission to amend the plaint. The amendment requested for pertained to deletion of the area mentioned in the plaint together with consequential amendments. The said application was granted with, consent subject to all just exceptions and the defendants were allowed to file written statement accordingly. The defendants filed their amended written statement which did not contain the admissions made by them in the original written statement. The plaintiff, therefore, filed an application under section 151, C.P.C. praying that the defendants should be restricted to give reply only in respect of such paragraphs of the plaint which were amended and the varied written statement in conflict with the earlier written statement, filed by them should not be accepted on record.

20. A learned Judge of this Court Mr. Justice Saleem Akhtar, J. (as he then was) after referring to the case‑law on the subject observed as under: ‑

21. "....The Court has vast discretionary powers to grant amendment and should be liberally exercised to promote the ends of justice and determine the real controversy between the parties. While filing amended written statement besides replying to the amended part of the plaint, the defendant can also raise pleas which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement. Admission made by a party in the pleading cannot be revoked without the leave of the Court."

22. The rule laid down in the above case is fully applicable to the facts and circumstances of this case and I respectfully follow the said rule:

23. Consequently it is held that the said defendants Nos.3(i) and 3(ii) cannot be permitted to resile from the admissions made by the deceased defendant No. 3. All such averments made in the written statement, dated 16th August, 1989, which are in any manner in conflict or inconsistent with the written statement, dated 5th March, 1979, shall be ignored and deemed non‑existent for all purposes. The consent issues framed on 1‑4‑1979 are adopted.

24. C.M.A. No.969/91 is accordingly allowed as prayed.

25. K.BA./H‑304/K Application accepted.