JANE MARGRETE WILLIAM vs ABDUL HAMID MIAN

1. ' SAEEDUZZAMAN SIDDIQUI, J---The above appeal by the leave of this Court is directed against the judgmnet of a learned Judge in chambers of Lahore High Court dated 23-8-1992 whereby R.FA. No, 2 of 1989 filed by the appellant against the judgmnet and decree of the trial Court was dismissed and the judgment and decree of the Court of first instance was upheld. Leave was granted in the case by this Court to consider the following contentions:- "Several questions of law arise in this petition for leave, namely, what, in law, is a Benami transaction? Could the instant transaction be termed to be a Benami? Whether a Benami transaction, is recognised in Islam?

2. ' It also requires to be seen whether the learned Single Judge deciding the appeal could have suo motu granted the relief of possession without the plaintiff seeking amendment of the plaint. This matter assumes importance because the inclusion of the relief of possession would result in raising the jurisdictional value in this matter to an amount exceeding Rs,2,00,000 and in such a case the appeal would normally have to be heard by a Bench of two Judges of the Lahore High Court.

3. Consequently, a learned Single Judge would be unable to grant the relief of possession.

4. ' These questions, inter alia, require fuller examination."

5. ' The relevant facts of the case are that the respondent in the appeal instituted a civil suit for declaration and injunction valued at Rs,200.00. The respondent sought declaration that he was the real and beneficial owner of the properties bearing No,68-H, Gulbesg-III, Lahore, and 5 shops built in Commercial Zone over Plot No,5-I-B, in Ghalib Market, Lahore (hereinafter to be referred as the suit properties) and that the appellant is only a Benamidar of the suit properties. An injunction was also claimed against the appellant restraining her from denying the title of respondent to the suit properties. The appellant resisted the suit and on the pleadings of the parties the following issues were framed in the suit:-- "(1) Whether the suit is not maintainable in its present form? OPD

(2) Whether the allegations against Mr. Muhammad Nawaz describing his role in relation to the case are irrelevant and scandalous? OPD.

(3) Whether the plaintiff received any money from defendant's mother, if so, what was this money and how was it spent? OPD

(4) Whether the plaintiff is the owner and defendant a "Benamidar" of both the suit properties? OPP anti

(5) Whether the defendant is estopped from setting up her title as against the plaintiff? OPP

(6) Relief."

6. ' The trial Court dismissed the suit by order dated 26-5-1979 on the ground that the plaintiff being out of possession of the suit properties was not entitled to file a suit for bare declaration of title under section 42 of the Specific Relief Act. On appeal the Additional District Judge, Lahore, by his order dated 10-1-1988 set aside the dismissal of suit and remanded the case to trial Court for disposal on merit in accordance with the law. It appears that after remand of the case, the respondent applied to the trial Court for deletion of issue No,1, but his application was rejected by order dated 13-6-1988 with the observation that since this issue would not be decided again in view of the judgment of the appellate Court dated 10-1-1988, it was not necessary to delete this issue. The application of respondent seeking leave to amend the plaint by adding relief of mesne profits in the suit against two Advocates was also rejected by the Court vide order dated 16-7-1988.

7. ' The Additional District Judge, Lahore, who heard the suit, decided issue No,1 against the appellant in view of his earlier order dated 13-6-1988. Issue No,2 was held irrelevant, and Issue Nos3, 4 and 5 were decided in favour of the respondent. As a result of the above findings the trial Court decreed the suit of respondent and declared him the absolute owner of the suit properties. The trial Court also granted permanent injunction restraining the defendant/appellant from denying the title of the plaintiff/respondent in respect of the suit properties. The respondent had also filed an application before the trial Court during pendency of the suit under section 151, C.P.C. Claiming possession of the suit properties which was disposed of in the final judgment as follows:- "Plaintiff has sought a relief of possession on the principle of status quo ante and moved an application under section 151, C.P.C.. This application was moved in the Court of my learned predecessor on 31-7-1988 and it was prayed that plaintiff be awarded mesne profits as well as the possession of the house in case plaintiff is held to be entitled to the decree prayed for in the issue.

8. Earlier to this application an application for amendment in the plaint and for impleadment of party to Mr. Muhammad Nawaz Kasuri Advocate as well as Mr. Muhammad Sadiq, Advocate was moved and it was urged that plaintiff be allowed to claim the relief of mesne profits and that the said persons be impleaded as defendant. The application was disallowed by Mr. Yar Muhammad Nasami, Additional District Judge, Lahore vide his order dated 16-7-1988 and as such plaintiff is estopped to claim mesne profit in the presence of order dated 10-7-1988 and similarly relief of possession also cannot be granted as the same was not prayed in the very suit and I am of the view that I cannot surpass the limits of prayer made in the suit, which was filed as back as in January 1972. Therefore, the application under section 151, C.P.C. Moved by the plaintiff is dismissed."

9. ' The appellant preferred R.F.A. No,2/1989 against the judgment and decree of the trial Court dated 5-11-1988. The appeal was admitted by a learned Judge in Chambers for regular hearing on 14-1- 1989. The respondent filed C.MA. No,883 of 1989 under section 151, C.P.C. In R.FA. No,2/1989 in which he claimed relief of possession in respect of suit properties. Although the above application was filed by the respondent under section 151, C.P.C. But it possessed all the attributes of cross- objections as would appear from the following assertions made in application:-- "(5) That the respondent, inter alia moved an application under section 151, C.P.C. On 31-7-1988 praying for the relief of status quo ante which indeed, in the present case, flows ex debito justatia.

10. The learned trial Court by its judgment, dated 5-12-1989 impunged together with the decree by the appellant declined to grant the relief on the ground that it was not prayed for in the suit.

(6) That the judgment ignores the fact that the respondent was in possession at the time of the filing of the suit and the circumstances in which he was later thrown out and that the property remained under the aegis of the Court especially on passing of order, dated 1-11-1975. Also there was an operating stay order prohibiting the appellant, who was Benamidar to dispose of it.

(7) That this Honourable Court has (as indeed the trial Court had) power to award the relief of possession especially in view of the circumstances mentioned above. However, should it be felt that nem ;asarily the pleadings of the respondent have to be amended in order to award the relief prayed for, in the interest of justice and to avoid multiplicity of suits, the relief of declaration of title may kindly be allowed to be converted into relief of possession and necessary amendment in the plaint may be allowed to be made.

11. ' In view of the above it is most humbly prayed that relief of possession of Bungalow No,68/H, Gulberg III, Lahore be kindly awarded."

12. ' The learned Judge in Chambers passed the following order on C.MA. No,883 of 1989:- "This petition will be heard alongwith the main appeal."

13. ' The learned Judge in Chambers after hearing the learned counsel for the parties concurred with the findings of the trial Court that the appellant was only a Benamidar and that respondent was the real and beneficial owner of the suit properties. The appeal filed by the appellant was accordingly dismissed. However, while dismissing the appeal filed by the appellant, the learned Judge in Chambers passed the following further order with regard to the relief of possession claimed by the respondent in his application under section 151, C.P.C. (C.MA. No, 883/1989):- "There remains the question whether the plaintiff is also entitled to the relief of possession. As has been noticed above, the defendant left this country in April or May, 1972 and since then, she has not returned. The contention was that to deny the relief of possession to the plaintiff would amount to allowing Mr. Nawaz Kasuri, a complete stranger, to remain the possession and to enjoy the properties without any right. Learned counsel for the plaintiff thought that the defendant or Mr. Nawaz Kasuri had taken possession of the properties, when there was a restraint order in operation.

14. That restraint order was said to have been maintained in another suit. It is not necessary to go into the question whether the defendant had entered into possession despite such a restraint order.

15. The fact of the matter is that the plaintiff has not been in possession of the properties. There is no question that in view of the declaration of title, to which he has been found to be entitled, he is also entitled to get the possession of the properties. To do complete justice and to save the parties of further litigation, there is power in the Courts to allow the amendment of the plaint at any stage of the suit. (See Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court 345).

16. To quote what I regard as the classic statement of the law on the subject 'the idea must always be a system that gives to every person what is his'. (Kaikaus, J. In Imtiaz Ahmad v. Ahmad Ali PLD 1963 SC 382). In this case, the relief of possession flows from the main relief of declaration of title and the case squarely falls under section 42 of the Specific Relief Act and Section 7, clause (iv), (c) of the Court Fees Act. I would, therefore, allow the plaintiff to amend his plaint, so as to ask for the relief of possession as a consequential relief."

17. ' The learned counsel for the appellant contended before us that the learned Judge in Chambers while dismissing the appeal of the appellant could not grant a decree for possession of the suit properties as the respondent had neither appealed against that part of the decree of trial Court which specifically denied him the relief of possession, nor he lodged any cross-objection in the appeal filed by the appellant, nor he applied for amendment of his plaint before the learned Judge in Chambers. It is also contended by the learned counsel for the appellant that in the absence of cross-objection to the appeal, the learned Judge in Chambers was not competent to resort to the provision of Order 41, Rule 22, C.P.C. For the purposes of granting a decree for possession of the suit properties to respondent at the appellate stage.

18. ' The learned counsel for the respondent on the other hand supported the impugned judgment and contended that technicalities could not come in the way of granting relief to the respondent if he was otherwise found entitled to it on facts and circumstances of the case. We have heard the learned counsel for the parties at length.

19. No doubt respondent had instituted the suit for declaration and permanent injunction only and he did not claim relief for possession but he did apply for amendment of plaint before the trial Court to include the relief of possession in the suit which was disallowed. The respondent had filed the suit for declaration of title to the suit properties, therefore, addition of relief of possession of these properties was neither alien nor inconsistent with the frame of suit. The trial Court initially dismissed the suit as not maintainable on the ground that the plaintiff being out of possession, could not sue for bare declaration of title under section 42 of the Specific Relief Act. The order of the trial Court dismissing the suit as not maintainable, was set aside in appeal and the suit was remanded to the trial Court for decision on merit in accordance with the law. The remand order was not challenged any further by the appellant which attained finality. The respondent throughout the proceedings agitated that he was dispossessed from the properties during pendency of the proceedings and claimed that he should be put back in possession on the basis of the status existing at the commencement of proceeding. Therefore, appellant was fully aware of the claim on the respondent regarding possession of the suit properties. In these circumstances, there might be a technical lapse on the part of respondent to have omitted to claim specifically the relief of possession in the suit but he neither gave up nor abandoned the relief of possession. In these circumstances, if the learned Judge in Chamber found that the respondent was entitled to the relief of possession, also in the case, he could allow the relief by allowing suitable amendment in the pleadings and directing the respondent to pay the difference of court-fee if any. The objection of the learned counsel for the appellant that the learned Judge in Chambers could not grant the relief of possession in the absence of an appeal from respondent against the part of the decree of trial Court which denied him the relief for possession and the omission to file a cross-objection in the appeal preferred by the appellant, are based on procedural technicalities only and not germane to the jurisdiction of Court to grant the relief. It is not disputed before us that after service of notice of appeal filed by the appellant before the High Court against the judgment of trial Court, the respondent filed an application (C.MA. No, 883 of 1989) under section 151, C.P.C. In which he prayed for relief of possession denied to him by the trial Court. There was nothing in law which prevented the Court from treating the application under section 151, C.P.C. Filed by respondent as cross-objection to the appeal filed by the appellant, if it was otherwise competent in law. It needs no mention that all rules of procedure framed for regulating the proceedings before a Court or Tribunal are meant for advancing the course of justice. Therefore, procedural laws and rules cannot be used as a means for denying the relief to an aggrieved party on ground of technical non-observance of these rules or procedural laws. Keeping these principles in view the Courts have always liberally allowed conversion of proceedings of one kind into another and misdescription in the title of proceedings or mention of a wrong provision of law have never been considered fatal to the grant of relief if it is otherwise available under the law to an aggrieved party. In view of the above discussion, the learned Judge in Chambers was fully competent to treat the application under section 151, C.P.C. Filed by the respondent as cross-objection in the appeal filed by the appellant.

20. ' The learned Judge in Chambers, therefore, while deciding the appeal of appellant had before him also the cross-objections filed by the respondent in the appeal and as such he was fully competent to grant the relief which the respondent was found entitled to, in the circumstances of the case and which was denied by the Court. We have already noticed that the respondent had been agitating from the very beginning for relief of possession and in fact at one stage of the suit he did apply for amendment of the plaint in the suit but it was declined by the trial Court. In these circumstances the learned Judge in Chambers, while considering the cross-objection of respondent rightly allowed the amendment of plaint by adding the prayer for possession of suit properties and directing the respondent to pay the deficit court-fee on the plaint.

21. ' We are, however, of the view that the legal implication arising from allowing amendment of the plaint were not taken into consideration in true perspective by the learned Judge in Chambers. If the learned Judge was of the view that amendment of plaint was necessary to do complete justice between the parties, the order allowing amendment of plaint should have preceded the decision of appeal and cross-objection so that the appellant would have the opportunity of meeting the case on the basis of amendment of the plaint.

22. ' It is also not disputed by the learned counsel for the respondent that as a result of amendment of plaint and addition of the relief of possession, the valuation of the suit went beyond Rs,2,00,000. It is also not denied that as a result of change in the valuation of suit the appeal should have been heard by a Bench consisting of two learned Judges of the High Court as provided by Rule 4 of High Court Rules and Order, Vol. V, Chap.3-B. We, therefore, while agreeing with the learned counsel for the respondent that in the circumstances of the case the learned Judge was justified in allowing amendment of plaint, we are of the view that the order allowing amendment should have proceeded the judgment in appeal so that appellant could get an opportunity to meet amended claim in the appeal. It was also in our view necessary that after amendment in the plaint was allowed the appeal and cross-objections should have been heard by a Bench consisting of the learned Judges of the High Court as required by the Rules. The learned counsel for the respondent however, contended that ample material was available on record before the learned Judge in Chambers to justify grant of relief of possession to respondent in the case. It may be so, but this material could be considered after appellant had notice that the amendment has been allowed and that the Court is considering to grant further relief of possession with reference to the material, on record. There is no indication in the impugned judgment that the learned Judge had put the appellant to notice that he was inclined to grant amendment of plaint and the relief of possession on the basis of material already on record. On the contrary it appears from the impugned judgment that the question of amendment was considered by the learned Judge in Chambers, while writing the judgment in the appeal. We are, therefore, while inclined to agree with the observations of the learned Judge in Chambers that in the circumstances of the case, it was not necessary to remand the case to the trial Court for amendment of the plaint and that the necessary amendments could be made during the proceedings of the appeal to avoid multiplicity of proceedings, are unable to agree that the relief of possession could be granted without formal amendment of plaint and allowing an opportunity to the appellant to meet the amended claim. It must be kept in mind that no formal cross-objections were filed by the respondent in the appeal filed by the appellant which would have put the appellant to notice that respondent was seeking relief of possession denied by the trial Court. We have however, held that C.MA. No, 883/1989, filed by respondent in the appeal could be treated as cross-objection to appellant's appeal. It is also worth mentioning that as a result of the amendment in the plaint and addition of the relief of possession in the suit the valuation of appeal was increased much beyond Rs,2,00,000 on which the respondent paid court-fee of Rs,15,000 after decision of the appeal. As a result of increase in the valuation of appeal, it was to be heard by a Bench of two learned Judges of the High Court in accordance with the Rule 4, Chapter 3-B, Volume V of High Court Rules and Orders. We, therefore, partly allow the appeal and remand the case to the High Court with the direction that the appeal and the cross-objections will be heard and decided by a Bench of the High Court consisting of two learned Judges, after taking into consideration the amendment of plaint allowed by the learned Judge in Chambers, in accordance with the law. The question of recovery of court-fee on the plaint, memo. Of appeal, as a consequence of amendment allowed by learned Judge in Chambers will also be considered by the Bench hearing the appeal. We will, however, make no order as to costs in the circumstances of the case.