BASHIR AHMAD KHAN vs QAISER ALI KHAN AND 2 Other

ORDER

1. ANWARUL HAQ, J. - This order will dispose of Civil Petitions for Special Leave to Appeal No. 146 of 1967 and 97 of 1972, which have arisen out of a civil suit pending between the parties in the Court of the Administrative Civil Judge at Muzaffargarh.

2. The suit was instituted on the 13th of May 1959 by the respondents, as successors-in-interest of Saadat A.I Khan, for a declaration that they were the exclusive owners of the property in suit, namely, 11292 kanals and 16 marlas of agricultural land with certain area of Shamilat land, situate in four villages of Leiah Tehsil of the Muzaffargarh District. They asserted that the land had been purchased in 1949 by Saadat A.I Khan from Its original owner, Maj. Amir Abdullah Khan, under an oral sale, but Saadat A.I Khan died before the mutations could be attested. Thereafter, it was alleged, the vendor's attorney Lal Hussain sold a portion of the property to the defendant Bashir Ahmad Khan, who is the petitioner before us in both the cases. It was further stated that the property had since been acquired by the Thal Development Authority on 4-4-1951.

3. While contesting the suit the defendant raised several preliminary objections as to its maintainability, all of which were, however, decided in favour of the plaintiffs by the trial Court. The defendant thereupon filed a revision petition in the High Court, pressing only two points: --

(i) That he being in possession of a part of the disputed land, a suit for mere declaration was hit by the proviso to section 42 of the Specific Relief Act; and

(ii) That the Thal Development Authority was a necessary party to the suit.

4. The revision petition was dismissed by a learned Single Judge of the High Court of West Pakistan at Lahore on 15-3-1967.

5. The petitioner moved Civil Petition bearing No. 146 of 1967 in this Court to challenge the correctness and legality of the order made by the High court, and leave to appeal was granted to him on the 29th or June 1967 to examine the following contentions t-

(i) That in view of the evidence led by the defendant to show that he was in possession of 1/4 of the disputed land, the learned Single Judge was not justified in holding that prima facie a suit for declaration was maintainable and that section 42 of the Specific Relief Act was not a bar to such a suit; and

(ii) That the disputed land having been acquired by the Thal Development Authority, the authority was a necessary party to the suit.

6. While granting leave to appeal, this Court stayed further proceedings in the suit pending the disposal of the appeal. In November 1967, the respondents moved an application in this Court praying that they be permitted to amend the plaint, or in the alternative the stay order may be vacated so as to enable the trial Court to decide the application for amendment of the plaint. By an order made on the 10th of January 1968 the stay order eras suspended so as to enable the respondents to move the trial Court for permission to amend the plaint. Preparation of the appeal was also suspended for the time being.

7. The respondents accordingly made an application in the trial Court on 5-3-1968 for amending the plaint under Order VI, rule 17 of the Code of Civil Procedure. They also filed another application under Order I, rule 10 of the Code for impleading as defendants the Thal Development Authority, the vendor Amir Abdullah Khan, and one Nawazish A.I Khan who was said to have purchased a part of the suit property from the defendant Bashir Ahmad Khan. The amendment sought to be made in the plaint was aimed at recovering from the petitioner the compensation which he had received from the Thal Development Authority in cash and in kind in lieu of the property in suit on its acquisition by the Thal Development Authority.

8. Both these applications were dismissed by the trial Court by a consolidated order passed on the 29th of May 1968. The Court took the view that the new reliefs claimed were hit by the bar of limitation, and there were no special circumstances to allow the amendment after the expiry of the period of limitation as all these pleas could have been taken at the time of the institution of the suit.

9. The learned trial Judge further observed that the plaintiffs were introducing an entirely new case by way of amendment of the plaint, as the claim was based on a different cause of action.

10. Aggrieved by the refusal of the trial Court to allow the amendment, the plaintiffs moved two revision petitions in the High Court, which have been accepted by a learned Single Judge on the 29th of February 1972. He has expressed the view that the amendments sought by the plaintiffs were not hit by the bar of limitation, and that the amendments did not seek to change the nature of the suit. However, he has left the question of limitation open with regard to a portion of the claim for the recovery of cash compensation already received by the present petitioner from the Thal Development Authority in lieu of the land in suit.

11. The defendant Bashir Ahmad Khan now seeks special leave to appeal against the revisional order of the High Court. The main points urged by Sh. Muhammad Shafi, in support of the petition, are

(i) That the revision petition was not maintainable in the High Court, as the order made by the trial Court did not amount to a case decided within the meaning of section 115 of the Code of Civil Procedure

(ii) That the application for amendment was moved after the lapse of nearly 9 years since the institution of the suit, and for that reason alone it should have been disallowed

(iii) That the new reliefs prayed for by way of amendment were based on different causes of action and had the effect of changing the nature of the suit;

(iv) That the new reliefs of possession of land as well as recovery of cash compensation received by the petitioner from the Thal Development Authority were barred by time and could not, therefore, have been allowed to be included in the plaint by way of amendment: and

(v) That in any case the Thal Development Authority could not be impleaded as a party without service of the statutory notice prescribed under section 75 of the Thal Development Authority Act of 1949.

12. While defending the revisional order made by the High Court, Mr. Munir Hussain, the learned counsel for the plaintiff---respondents, has pressed his application for the recall of the order granting leave in Civil Petition for Special Leave to Appeal No. 146 of 1967 on the ground that both the objections noticed in that order as regards the maintainability of the suit as originally instituted, have since been removed by the amend--ment of the plaint.

13. We shall first take up the contentions raised by Sh. Mohammad Shafi in Civil Petition for Special Leave to Appeal No. 97 of 1972 against the revisional order made by the Lahore High Court on the 29th of February 1972. We agree with Mr. Munir Hussain that in case this revisional order is maintained, Civil Petition for Special Leave to Appeal No. 146 of 1967 would be rendered infructuous, as the points raised therein would no longer be relevant fn the context of the amended plaint.

14. On the question of maintainability of the revision petition fn the High Court, the only point made by the learned counsel is that the order of the trial Court refusing the plaintiffs' prayer for an amendment of the plaint, as well as their application for impleading the Thal Development Authority was not a case decided within the meaning of section 115 of the Code of Civil Procedure.

15. In support of this submission he has placed reliance on Muhammad Swaleh v. Messrs United Grain do Fooder Agencies (PLD 1964 SC 97), Salfuddin Malik v. The Government of West Pakistan (PLD 1969 Lah.506) and Muhammad Umar Beg v. Sultan Mahmood Khan (PLD 1970 SC 139).

16. An appraisal of the cases cited by the learned counsel shows that they deal generally with the scope of revisional powers conferred on the High Court by section 115 of the Code of Civil Procedure, but not with the precise question of the maintainability of a revision petition in certain situations. There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase "case decided" but it seems to us that the view, taken by the majority of the Full Bench of 7 Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar. 149), states the position correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending A before the subordinate Court. Two of the present Judges of this Court (Muhammad Yaqub A.I and Waheeduddin Ahmad, JJ.) were party to this decision. Applying this test, it would appear that the order made by the trial Court in this case, rejecting the two applications made by the plaintiff respondents did amount to a case decided, and was therefore amenable to correc--petition In the exercise of the revisional power of the High Court. If it fell within the ambit of any of the clauses of section 115 of the Code.

17. It will be recalled that several preliminary objections were taken by the petitioner himself to the maintainability of the suit as originally instituted, and two of these objections form the subject- matter of Civil Petition for Special Leave to Appeal No. 146 of 1967. One of the main objections was that the plaintiffs had failed to ask for consequential relief and, therefore, their suit was hit by the proviso to section 42 of the Specific Relief Act. It seems to us that the amendments, which have now been allowed by the High Court, are really in the nature of consequential reliefs arising from the main cause of action on which the original suit was based. If the land in dispute has been acquired by the Thal Development Authority, and in lieu thereof compensation in cash or kind has been received by the present petitioner, asking for the recovery of such compensation in lieu of the original property in dispute can hardly be described as setting up a new case instead of the original claim. The amendments were, in fact, intended to remove the objections raised by the petitioner himself as to the maintainability of the suit.

18. The twin questions of delay and limitation may now be considered together. The preliminary objection raised by the petitioner had been overruled by the trial Court, and this view, was upheld in revision by the High Court. However, whew this Court granted special leave to appeal in this behalf (in C. P. S. L. A. No. 146 of 1967) on the 29th of June 1967, the plaintiff-respondents felt compelled to amend the plaint so as to remove the objections concerned. In these circumstances, the plaintiffs cannot be blamed for the delay that occurred in~ applying for the amendment.

19. Almost all the time was spent in getting a decision from the Courts at various levels on the question whether the amendments were indeed necessary or not.

20. PLD 1963 SC 191), Niaz Hussain v. Imdad Hussain (PLD 1965 Lah. 172) and Muhammad Arshad Khan v. Murad Khan (PLD 1965 Pash. 225).

21. The learned counsel for the petitioner placed reliance on Tipan Prasad Singh and others v.

22. Secretary of State (A I. It 1935 Pat. 86) and Bhagwanji Moraji Goculdas v. Alambic Chemical Works Co. Ltd and others (AIR 1948 P C 100) for contending that the amendments should have been refused as they were hit by the bar of limitation. We find that the first mentioned case is not so categorical in its verdict, as would appear at first sight from the relevant head --note. Having laid down the principle, the learned Judge proceeded to spell out an exception to the rule; in view of the peculiar circumstances of the case. In tae second cash there were no special circumstances justifying the permission to amend and, therefore, the rule of limitation was enforced. This case does not appear to us to have the effect of overruling the view previously expressed by the Judicial Committee in the case of Charan Das and others, to which we have already referred.

23. The objection as regards the non-service of the statutory notice prescribed under section 75 of the Thal Development Authority Act, 1949, has been taken in this Court for the first time, and we would be justified in refusing to entertain the E same. In any case, it appears to us that this is an objection, which could be legitimately taken only by the defendant concerned and not by the petitioner.

24. For the foregoing reasons we are of tine view that the High Court was right in allowing the amendment of the plaint, and also the application for impleading the Thal Development Authority as a defendant. Civil Petition No. 97 of 197 accordingly fails and is hereby dismissed.

25. Civil Petition No. 146 of 1967 has become infructuous in these circumstances and is also dismissed.

26. The order granting leave to appeal is recalled.