Syed AKHLAQUE HUSSAIN AND Another vs WATER AND POWER DEVELOPMENT

1. ANWARUL HAQ. J. This appeal, by the leave of the Court, is directed against an order made by a learned Judge of the Lahore High Court on 25-2-1974, by which a revision petition instituted by the respondent, namely, the Water and Power Development Authority (hereinafter referred to as the WAPDA), was accepted, and an order made by the trial Court on 28-9-73 allowing an amendment in the appellant's plaint in a suit for damages to the tune of Rs. 96,000, was set aside.

2. The appellants had filed a suit on the 16 of June 197.1 against a firm by the name of Common wealth Associate (Inc.) for recovery of Rs 96,000 as damages caused to the appellant---s residential property which had been let out to this firth at the rate of Rs. 2500 per month. An application was also made by the plaintiff-appellants for attachment before judgment of certain sums of money which were said to be payable by 'NAPDA to the said firm. It appears that on learning that the WAPDA may not be holding sufficient funds in this behalf the appellants made an application on the 31st of August 1973 praying that the WAPDA be impleaded as defendant No. 2 in the suit and certain paragraphs be allowed to be added in the plaint to the effect that the contract for lease entered into by the aforesaid firm was also on behalf of WAPDA, and that possession of the house fad been jointly delivered to the firm and the WAPDA. A further averment was made that WAPDA had also been paying part of the rent of the premises.

3. Although a notice of this application was given to WAPDA, yet it did not choose to contest the same before the trial Court. The application was, however, opposed by the original defendant, namely Messrs Commonwealth Associate. It was, nevertheless, allowed by the trial Court by its order dated the 28th of September 1973, as already stated.th It is submitted by Mr. Akhlaque Hussain, who has argued the case in person, that the application for the amendment of the plaint was made promptly within about two months of the filing of the suit, and at a stage when the defendant had not yet appeared before the trial Court, and that lit was not opposed by the WAPDA in spite of the notice of the same. He contends that there was no material whatsoever before the learned Judge in the High Court to record the finding that the amendment was not sought for in a bona fide manner, and that in any care the question whether WAPDA was indeed jointly liable with the firm, Commonwealth Associate, for the rent and damages caused to the property was a question of fact still to be decided by the trial Court by taking evidence of the parties. He contends that there is overwhelming authority for the proposition that an amendment in the plaint should be allowed liberally except when it causes an injury to the opposite-party or it seeks to entirely change the nature of the cause of action, for which a new suit would be hit by limitation. Finally, on the question of bona fides of impleading the VN APDA as a defendant in the suit, he states that in subsequent litigation between the partite in the Court of the Rent Controller a final finding has now been recorded to the effect that relationship of landlord and tenant exists between the appellants and WAFDA, and that the WAPDA authorities have even handed over vacant possession of the disputed premises to the appellants in pursuance of an order of ejectment made by the Rent Controller.

4. We consider that there is merit in the submissions made on behalf of the appellants. There is indeed a long; line of judicial authorities laying down that amendment should be allowed liberally except when it caused injury to the opposite side. In support of this proposition, one may refer to Jharia Coal Co. Of Dhanba Bihar v. Diwan Chard Co. Of Delhi (AIR 1921 Lah.367), Ma. Shwe Mya v.

5. Moung Mo Nnaung (AIR 1922 P C 240), Shams-ud-Din v. Den v. Dos (AIR 1923 Lah. 50), Aispa v. Mr. Chino (AIR 1923 Lab. 530). Babulall Ckouk koni v. Hariprosad Roy (AIR 1944 Cal. 72) and Bashir Ahmad v. Qaiser A.I (PLD 1973 SC 507).

6. As observed by their Lordships of the Judicial Committee, all rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.

7. It will be seen that the real question in deciding as to the propriety of allowing an amendment of the pleading is, to use the words employed in the relevant rule itself, whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. If so then leave to amend ought to be allowed liberally, provided of course that it does not have the effect of setting up an altogether different cause of action. Now, in the present case, the appellants had asserted that WAPDA was also jointly liable for the rent of the property as well as for the damage caused thereto. Even if they had not originally said so in the plaint filed against the Commonwealth Associate, the fact remains that these were allegations or averments which needed to be proved by evidence at the trial. There has accordingly hardly any occasion for the High Court to hold that the application had not been made in a bona fide manner. The bona fides of the appellants now stand proved in any case by the course of litigation in the Court of the Rent Controller. We Lave already stated that a din al order has since been made directing the ejectment of WAPDA on the ground that the relationship of landlord and tenant existed between the parties. It would appear, therefore, that the learned Judge in the High Court was in error in setting aside the order of the learned trial Judge allowing the amendment --prayed for by the appellants.

8. As a result, ac would accept this appeal, set ague the order of the High Court and restore that of the trial Court. Costs will abide by the final event, Appeal accepted.