MIR MAZAR vs AZIM

' SAJJAD ALI SHAH, J.--Appellant before us as plaintiff filed suit for permanent injunction against respondent herein on the ground that land in dispute described at page 138 of paper book is owned and possessed by him with which defendant in the suit could not interfere on the basis of so-called claim of ownership indicated by the fact that he had dug well in the centre of it. The suit was filed in the Court of Assistant Commissioner/Qazi Turbat. Proceedings under section 145, Criminal Procedure Code were taken in hand by the parties, which went up to High Court. After consideration of evidence and documents produced by the parties, suit was .Decreed in favour of plaintiff with direction that portion of suit land in use of defendant as cultivator was to be restored to the plaintiff.

2. Against the decision in suit, appeal was filed before Majlis-e-Shoora, Khuzdar, which was allowed vide judgment dated 11-5-1982 on the ground mainly that in the judgment of Qazi Sahib in suit proceedings possession was shown to be with defendant, hence suit for perpetual injunction was not competent and suit for possession should have been filed. Execution proceedings took place and finally Civil Revision No,29/81 was filed in the High Court of Balochistan by plaintiff in the suit with prayer inter alia for modification of decree of the trial Court with grant of relief of possession of the portion of land which had come in forcible 'possession of defendant in the suit.

Appellant/plaintiff in the suit also filed application in the High Court for amendment of the plaint to include therein prayer of relief of possession of portion of the dispute and of which he was dispossessed by defendant in the suit. High Court dismissed Revision on the ground that defect in decree for possession in a suit for injunction was cured by judgment of Majlis-e-Shoora with which no interference is warranted.

3. Leave is granted by this Court vide order dated 8-4-1990 to consider the contention that plaintiff in the suit was. Admittedly in part possession of the suit land and his application for amendment being technical in nature should not have been rejected in view of decision of this Court in the case of Mst. Ghularn. Bibi and others v. Sarsa Khan and others reported in PLD 1985 SC 345.

4. Order VI, rule 17 of Civil Procedure Code provides that the Court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Interpretation of the provision came up for detailed examination in view of case-law on the subject in the case of Mst. Ghulam bibi mentioned above by this Court. In that case Muhammad Aslam predecessor-in-interest of appellants received agricultural land in District Vehari from Mian Khan predecessor-in-interest of respondents in lieu of his land in District Sargodha. Land received by Muhammad Aslam in exchange was in excess, hence he agreed to pay some extra amount as equaliser. Possession was exchanged but as Mian Khan died, his legal representatives refused to agree to the exchange. Muhammad Aslam filed suit for declaration that he is owner in possession and injunction to restrain respondents from interfering with his possession.

' Objection was taken that suit in that form was not maintainable and issue was framed but suit was decreed in favour of appellants. Appellate Court reversed judgment and decree on the ground that exchange deed was not registered, hence title did not pass to the appellants and further -suit for specific performance should have been filed. During hearing of second appeal, application was filed to amend the plaint, which was rejected for the reason that request was belated. In such circumstances this Court examined the scope and construction of Order VI, Rule 17, C.P.C. And finally allowed appeal and application filed in the High Court for amendment of plaint subject to the payment of cost and remanded the case to the trial Court with proper opportunity to the other side to amend their written statement. Pertinent observation from the judgment of this Court is reproduced as under:- "In some cases in addition to what the Judicial Committee thought in the case of Ardeshir H. Mama to be the right of a defendant 'to starve a plaintiff out of his right through the technicalities of procedure' with which, with respect, we have not been able to agree, it has also been observed that when allowing amendment in a plaint the defendant's right should also be kept in view. When the relevant law itself takes cognizance of any inconvenience, embarrassment or frustration to a. Party on account of its observance the Court would not through any residuary principle add to or subtract from the manner of making amends provided by the law itself. In case of amendment to the pleadings the law-makers when enacting rule. 17 of Order VI were conscious that the party opposing the amendment might be deprived of some right, convenience or advantage or may otherwise be put in some embarrassment by permitting the amendment; which as has often been held might even override the consideration of limitation, provided the cause of action is not changed so as to make it a totally new suit. It was this consciousness regarding some amount of loss to the other party that the law-makers visluaised a compensation, namely, that the amendment keeping in view the circumstances of the case and the stage of litigation would be on "such terms as may be just."

5. It has been ruled in recent years by the superior Courts of Pakistan that rules of procedure arc meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice as has been held in abovementioned reported case. In the instant case after suit was decreed by the trial Court, execution application was filed and possession of 'small portion was handed over to the appellant and against that order, appeal filed before District Magistrate was dismissed. However, appeal against judgment and decree was allowed by Majlis-e-Shoora. In second appeal before High Court application was filed seeking amendment of plaint, notice of which was served on the other party but no reply was filed thereto. High Court did not pass any order on the said application but dismissed second appeal. Ends of justice demanded that amendment should have been allowed as such request could be treated at par with case of declaration under section 42 of Specific Relief Act when consequential relief had not been sought. Amendment sought in effect is formal in nature and by allowing it, nature of the suit is not changed. Following the rule laid down in the case of Mst. Ghulam Bibi supra, we set aside judgments/decree of High Court and first appellate Court and remand this case to the first appellate Court on cost of Rs,1,000, for decision of appeal afresh as pending with assumption that plaint stood amended as prayed in the High Court. Resultantly appeal is allowed with no order as to costs.