Javed Islam Versus Tahir Islam

Order

Abid Aziz Sheikh, J.--- This Constitutional Petition is directed against the orders dated 21.10.2024 and 04.03.2025 passed by the Trial Court and the Revisional Court, respectively (hereinafter referred to as "impugned orders"), whereby the petitioner's application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 ("C.P.C.") was dismissed during post-remand proceedings.

2. Relevant facts are that the petitioner is real brother of respondent No.1 (hereinafter referred to as "respondent") and the mother of the parties resides with the petitioner at his house in Sialkot. The petitioner and respondent had jointly purchased certain property and they further engaged in joint business, establishing three transport companies. On 21.05.2016, the respondent instituted a Suit for Partition with separate Possession (hereinafter referred to as "respondent's Suit"), which was contested by the petitioner on the ground that the suit property was not partitionable, as the respondent had no title therein owing to a family settlement already acted upon. Subsequently, on 16.10.2017, the petitioner instituted Suit for Declaration along with Permanent Injunction as a consequential relief (hereinafter referred to as "petitioner's Suit"), reiterating the plea of family settlement. On the respondent's application, the Trial Court consolidated both Suits but did not frame consolidated issues and proceeded to trial only on the issues framed in the respondent's Suit, and through consolidated judgment and decree dated 31.01.2019 decreed the respondent's Suit by way of preliminary decree of partition and dismissed the petitioner's Suit. The petitioner's appeal also met with the same fate vide judgment and decree dated 18.12.2020, however, this Court in Civil Revision No. 18167 of 2021 set aside the judgments and decrees passed by the Court's below mainly on the ground that the Trial Court was required to frame consolidated issues but failed to do so, consequently, the matter was remanded on 31.05.2024 with the directions to re-frame consolidated issues considering the pleadings of the parties, record evidence, and decide the cases afresh on merits. During post-remand proceedings, on 14.09.2024, the petitioner in his Suit filed an application under Order VI Rule 17 of the C.P.C. ("petitioner's application") seeking amendment of his plaint to elaborate the particulars of the plea of family settlement already raised; however, the same was dismissed by both the Courts below, vide impugned orders; hence, this Constitutional Petitioner.

3. Learned counsel for the petitioner contends that the proposed amendment in petitioner's Suit is merely intended to elaborate and amplify the particulars of the plea already raised, without in any manner altering the nature or character of the Suit. Further submits that pursuant to the remand order, the Suits are to be adjudicated afresh after framing consolidated issues, hence, the delay, if any, is not fatal to the application. Finally submits that since the substantial rights of the parties are involved, the proposed amendment is essential to ensure fair and just adjudication of the controversy at hand. Reliance is placed on "Muhammad Ramzan and others v. Liaqat Ali and others" (2001 SCMR 1984), "Mst. Ghulam Bibi and others v. Sarsa Khan and others" (PLD 1985 SC 345) and "C.A. Waheed v. Aftab Ahmad Mian and another" (PLD 2006 Lah. 68).

4. Learned counsel for the respondent, on the other hand, submits that petitioner's application is not only an attempt to fill up lacunae in the pleadings but is also intended to alter the complexion of the case to the prejudice of the respondent, which cannot be permitted at this belated stage. He placed reliance on "Abaid Ullah Malik v. Additional District Judge, Mianwali and others" (PLD 2013 SC 239) and this Court's judgment dated 26.10.2022 passed in Writ Petition No. 65220 of 2019.

5. Arguments heard. Record transpires that in Para-3 of the petitioner's Suit, it was specifically pleaded that with mutual consent and with the intervention of close relatives, both parties agreed that the petitioner would relinquish his share in business at Lahore, whereas the respondent would give up his share in property sought to be partitioned. Through his application, the petitioner intends to elaborate upon the aforesaid Para-3 by providing exact date, time and the witnesses in whose presence the said family settlement was executed.

6. No doubt, the proposed amendment has been sought after delay of almost seven years from filing of the petitioner's Suit; however, it is significant that the application was filed prior to the framing of consolidated issues in post-remand proceedings and pursuant to remand by this Court, the case are to be tried afresh after framing consolidated issues and recording fresh evidence, therefore, both Suits are at a stage like to a fresh trial. It is also a settled law that an amendment to pleadings, under Order VI Rule 17 of the C.P.C., can be allowed at any stage of proceedings, even by the first or second appellate court, or in revision, or in appeal before the Supreme Court. Reliance in this regard is placed on "Lahore Development Authority and others v. Sultan Ahmad and another" (2007 SCMR 1682), "Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others" (PLD 2003 SC 379) and "Ch. Abdul Rashid v. Ch. Muhammad Tufail and others" (PLD 1992 SC 180).

7. It is well-settled law that amendment cannot be allowed if it changes the complexion of the suit, or is sought with mala fide object of overcoming the contradictions. However, perusal of the record demonstrates that the petitioner has consistently taken the plea of family settlement since the very inception of litigation, both in this written statement to respondent's Suit and in his own Suit and the proposed amendment is not shown to be destructive of nor contradictory to the plea already raised by the petitioner; rather it is aimed at amplifying and elaborating the existing plea by supplying the further particulars and elaboration of an existing plea does not amount to change in the nature of the Suit. Such an amendment is permissible under the law. Reliance is placed on "Gulzar Ahmad v. Additional District Judge and others" (2019 CLC 1432), "Saif-ur-Rehman v. Mst. Rubina Kamal" (2013 CLC 1810), "Nazir Ahmed and another v. Sarfraz Ali and 2 others" (PLD 2013 Lah. 309), "Ch. Ghulam Mustafa v. Mst. Rizwana Shaheen and 3 others" (2010 CLC 267), "Ehsanullah Afridi v. Province of Sindh and others" (2009 YLR 321), "Islamic Republic of Pakistan through Secretary, Ministry of Kashmir Affairs v. Fakhar-ud-Din through Legal Representative and others" (PLD 2007 Lah. 380) and "Khushi Muhammad v. Abdul Ghafoor" (2000 YLR 1508). The case law relied upon by petitioner, therefore, fully supports the above plea. Conversely, the case law relied upon by the respondent pertain to cases where amendments were tainted with dishonest motives and were consequently disallowed; therefore, the said case law is distinguishable and not applicable to the facts and circumstances of the present case.

8. In view of above discussion, this Writ Petition is allowed and the impugned orders are set aside; consequently, petitioner's application under Order VI Rule 17 of the C.P.C. stands allowed. There shall be no order as to cost.

JK/J-13/L Petition allowed.