IN THE HIGH COURT OF SINDH, BENCH
C. P. No. D – 77 of 2012
Mr. Justice Muhammad Shafi
Mr. Justice Khadim Hussain
Date of hearing: 18.09.2018.
Date of judgment: 02.10.2018.
Bahadur Ali Shah, Advocate for the petitioner.
Abdul Ghaffar Memon, State Counsel.
U D G M E N T
MUHAMMAD SHAFI SIDDIQUI, J. – Brief facts leading to the filing of this
petition are that a suit for recovery of money for the use of property was
filed by the petitioner as Suit No.35/1999, which was assigned new number as
137/2006. While the suit was pending, an application under Order VI Rule 17,
CPC, was preferred by the petitioner. The petitioner sought amendment that he
may be declared as a bonafide purchaser of the property and consequently the
relief of possession was also prayed in terms of the proposed amendment. The
application was contested, and the IInd Senior Civil Judge was
pleased to dismiss the application on the ground that it would change the complexion
of the suit.
2. The petitioner preferred revision application No.14/2011, which also met the same fate as the order of the trial Court was maintained by the appellate Court in terms of order dated 10.09.2011.
3. We have heard the learned counsel and perused the material available on record.
4. In substance, the only contention that requires consideration is as to whether such proposed amendment would change the complexion of the suit or not. Order VI Rule 17, CPC, provides that the Court may at any stage of the proceedings allow either party to alter or amend its 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.
5. The pleadings of the petitioner disclosed that in terms of Para 6, the respondent / defendant No.2 promised to vacate the building, but subsequently he resiled from promise and refused to pay the charges for occupation and also to vacate the same. In terms of Para 10, which is a prayer clause, the petitioner also sought relief of recovery of the outstanding rental charges and future charges till the respondent vacate the subject premises. Hence, it could be safely observed that the pleadings of the plaint do support the proposed amendment sought by the petitioner. In the same way, will not change the nature and complexion of the suit. Had the proposed amendment be not supported by the pleadings in terms of Para 6 as well as in terms of prayer clause ‘A’, it could be a possibility that nature and complexion of the suit may have been altered by introduction of these impugned, proposed amendments, but that is not the case here.
6. The next argument as raised by the learned counsel for the respondents is that it is a belated / time barred application and on this count alone the application is liable to be dismissed. Order VI Rule 17, CPC, itself provides that the Court may at any stage of the proceedings allow either party to alter or amend its pleadings subject to the condition that it may not alter the nature of the controversy and it was necessary for reaching the just and fair conclusion. The delay alone, thus, cannot come in the way of the petitioner in moving an application. Reliance is placed upon the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others reported in PLD 1985 Supreme Court 345 and the case of Mumtaz Baig and 5 others v. Sarfraz Baig reported in 2003 CLC 713.
7. In the case of Mst. Ghulam Bibi (supra), the Hon’ble Supreme Court held as under:
“ After hearing both the learned counsel for some time we agree with the
observation made by the learned Judge in the High Court that “generally delay
alone in applying for amendment or expiry of period of limitation or increase
in court-fee and change of jurisdiction is not a ground for refusing amendment
in the plaint”, the judgments cited by the learned counsel for the appellants
depending upon the circumstances of each of them support the said view.
However, with respect, we have not been able to agree with the learned Judge
that notwithstanding the legal position, “in the circumstances of the present
case there is no merit in the prayer to allow the amendment for the reason that
the appellants were negligent or that the application for amendment was not
made bona fide”.
…………… The use of the expression “at any stage of the proceeding” in rule 17 is
not without significance. The word “proceedings” has been interpreted by this
Court in a liberal manner so as to give a proper scope to the rule in accord
with its purpose, as including the appellate stage and that too up to the
Supreme Court. ”
8. In the case of Mumtaz Baig (ibid), observations made by the Division Bench of the Peshawar High Court are as under:
“ 4. ……………
Provisions of Order VI, rule 17, C.P.C. confers authority for allowing
amendment of pleadings at any stage of the proceedings in such manner and on
such terms as may be just and such amendments are to be allowed if necessary
for the purpose of determination of real question in controversy between the
parties. Order VI, rule 17, C.P.C. reads:‑‑
“The Court may at any stage of
the 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 question in controversy
between the parties.”
5. There is no cavil with the proposition that Court is always
empowered under Order VI, rule 17, C.P.C. and enjoys jurisdiction to allow
amendments in plaint at any stage which are just and necessary for final
disposal of the case in between the parties. Needless to add that at the same
time the Court is bound to exercise such jurisdiction in accordance with
settled judicial principles particularly while allowing request for amendment
that no prejudice is caused to other side and secondly for accurate
determination of case, amendment is necessary. Amendment can be allowed at any
stage, if it does not change the cause of action of the suit. Amendment can be
allowed to seek consequential relief arising from the cause of action
originally incorporated in plaint. Amendment can be allowed to add additional
relief available to plaintiff even before higher Courts of jurisdiction.
Amendment can also be allowed for converting a suit from one relief to another
i.e. if suit was filed for declaration, same can be converted into possession
etc. However, amendment cannot be allowed when mala fide on part of plaintiff
is explicitly visible in the pleadings. Amendment cannot be allowed to raise a
plea of fact which is derogatory to the plea already taken up in the plaint
particularly when such fact amounts to admission in favour of other side. ”
9. The respondent has not denied this fact that the subject property was handed over to the respondents for construction purpose only. The title of the petitioner was not disputed by the private respondents. This observation is without prejudice to the rights of the official respondents and they are well within their rights to take any defence in respect of the alleged title of the petitioner and this observation is only for the purpose of present controversy which is only in relation to an amendment sought in the pleadings. The question of title is not being agitated before this forum and, hence, we are not inclined to pass any comment in this regard.
10. In view of the above facts and circumstances, we set aside the impugned orders passed by the two Courts below whereby the application under Order VI Rule 17, CPC was declined and the petitioner was ousted from availing a remedy of possession in view of the dismissal of the application. The application under Order VI Rule 17, CPC, is allowed. The amended plaint and amended written statement be filed within fifteen (15) days, and the trial Court after framing issues soon thereafter shall record evidence of the parties preferably within four (04) months and decide the controversy involved in the Suit, within above timeframe.
11. The petition stands disposed of along with pending application in the above terms.
J U D G E
J U D G E