Mst. BAKHTAN MAI Versus Mst. ANWAR MAI
AMIN-UD-DIN KHAN, J.--- Through this writ petition petitioners who are plaintiffs of a suit for declaration have challenged the order passed by the learned revisional court dated 13.9.2004 whereby the revision petition was accepted and the order dated 26.2.2003 of acceptance of application for amendment of the plaint filed by the plaintiffs/appellants was set aside.
2. Learned counsel for the petitioners argues that in a declaratory suit where a declaration of title to the property was sought on the basis of inheritance and through the application filed under Order VI, Rule 17 of the C.P.C. the amendment sought in the plaint was of a formal nature where some correction of names of predecessor of the plaintiffs mentioned in pedigree table in the plaint was sought, therefore, no question of change of nature of suit. While relying upon 1985 SCMR 1865 "Ch. Muhammad Sharif v. Afsar Textile Mills Limited and another" , PLD 1982 SC (AJ&K) 64 "Muhammad Sulaiman and another v. Javed lqbal and others" , PLD 1978 Lahore 679 "Karim Dad v. Arif Ali and another" , PLD 1991 Supreme Court 1007 "Bibi and another v. Noor Muhammad(deceased) through Legal Heirs and another" , PLD 1992 Supreme Court 811 "Mst. Fazal Jan v. Roshan Din and 2 others" , PLD 1992 Supreme Court 822 "Khurshid Ali and 6 others v. Shah Nazar" , PLD 1989 Supreme Court 749 "Barkhurdar v. Muhammad Razzaq" , 1986 CLC 2342 "Mst. Sardar Begum v. Malik Khalid Mahmood and others" and PLD 2001 SC 518 "Qamar-ud-Din v. Muhammad Din and others" states that the learned trial court has exercised jurisdiction vested in it by law but the learned revisional court while reversing the order of the learned trial court has travelled beyond the jurisdiction and exercised the jurisdiction not vested in it by law.
3. One of the learned counsel namely Malik Muhammad Ahsan Karol, Advocate representing respondents Nos.28 to 33 states that he has no objection if the writ petition is accepted whereas learned counsel representing respondents Nos.21 and 22 and learned counsel representing respondents Nos.38 to 49 have contested this writ petition and stated that by allowing the amendment, nature of the suit will change, therefore, order of revisional court is in accordance with law.
4. I have heard learned counsel for the parties and gone through the case law referred by them.
5. I am unable to understand the argument of learned counsel for the respondents that how by allowing the proposed amendment the nature of the suit will change. I have noticed that only correction of name has been sought in Para 1 of the plaint where pedigree-table has been mentioned. When there is no bar in accordance with Order VI, Rule 17 of the C.P.C. in allowing the proposed amendment and learned trial court has exercised jurisdiction vested in it by law, the learned revisional court was having no jurisdiction to substitute the findings of the learned trial court while exercising revisional jurisdiction, therefore, findings of learned revisional court are not sustainable under the law. Furthermore, the findings of the learned revisional court are against the settled principles laid down by the august Supreme Court of Pakistan, which has been referred by learned counsel for the petitioners referred supra. An amendment in the pleadings can be granted at any stage of the proceedings, even if at the stage of August Supreme Court. The only test is that by proposed amendment the nature of suit should not change. In case in hand by allowing proposed amendment the nature of suit will not change.
6. In this view of the matter, while allowing this petition, the order passed by the learned revisional court is declared to have been passed without jurisdiction and same stands set aside.
RR/B-18/L Petition allowed.