BARKAT BIBI Versus KHUSHI MUHAMMAD

SALEEM AKHTAR, J.‑‑‑ The petitioner seeks leave to appeal against the judgment of the learned Judge in Chambers whereby the regular second appeal filed by the respondents was allowed.

2. The dispute relates to a house which was an evacuee property and had provisionally been transferred to Mujeeb Ahmad, predecessor‑in‑interest of the petitioner. He executed agreement dated 19‑6‑1960 and another one on 25‑7‑1961 agreeing to sell the house to Khushi Muhammad for a consideration of Rs.5,000. Khushi Muhammad was put in possession of the house and the entire sale consideration was paid. Mujeeb Ahmad had agreed to execute a sale deed after the house had been permanently transferred to him. The PTD was issued in the year 1964, but as he failed to execute the sale‑deed in favour of Khushi Muhammad, he filed a suit on 18‑5‑1964 for declaration that he was owner of the house and Mujeeb Ahmad had no right to alienate it. It seems that such a prayer was made as Mujeeb Ahmad wanted to transfer the property. Mujeeb Ahmad contested the suit admitting the agreement, but pleading that the sale consideration was Rs.6,500. He further pleaded that he had transferred the house by way of gift to his wife.

Maintainability of the suit in a declaratory form was also challenged. The trial Court held that the sale consideration was Rs.5.000 and as the suit was maintainable, a decree in favour of Khushi Muhammad was passed. In appeal the learned Judge allowed amendment in the plaint by which the prayer for specific performance was added. The appeal was thereafter allowed and a decree for specific performance of the agreement was passed. It seems that both Khushi Muhammad and Mujeeb Ahmad died and they are represented by their legal representatives.

3. The learned counsel for the petitioner contended that when the amendment was allowed by the learned Judge, the claim for specific performance had become time‑barred and therefore no decree could be passed. The correct legal position is that such objection had to be considered at the time of granting the amendment application. Once an amendment is granted, it relates back to the rate when the suit was filed. As observed in Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) after the amendment has been allowed "the question of limitation would then remain only of form and not of substance". Therefore, at this stage when the amendment has been allowed, plea of bar of limitation cannot be raised.

4. The learned counsel contended that by allowing the amendment the nature of suit had completely been changed and the appellate Court should not have allowed such an amendment. The respondents had sought amendment in the plaint by adding a prayer for specific performance. The averments and contents of the plaint were not required to be changed as on the basis of those averments the prayer for specific performance was sought. By mere adding an additional prayer in the plaint without changing the contents and averments made in the plaint, the nature of the suit is not changed or altered. Even cause of action has not been changed. The amendment will not be allowed if a new cause of action is substituted for the original one nor when a new claim based on a new set of facts is introduced. The Court has vast power to allow amendment of the plaint at any stage in the interest of justice. An alteration in the relief does not ordinarily change the character or substance of the suit if it is based on the same averments, and if such an amendment is allowed, no injustice could be done to the other party. Reference can be made to Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762). The petitioner had received the entire sale consideration. The physical possession of the property had been given to the respondents at the time of agreement and therefore, in these circumstances, to deny the respondents relief of specific performance would be causing injustice to them. We refuse to grant leave.

A.A./B‑243/S Leave refused.