O R D E R S H E E T

IN THE HIGH COURT OF SINDH AT KARACHI

HCA No.332/2008

ORDER WITH THE SIGNATURE OF THE JUDGES

1. Katcha Peshi.

2. For hearing of CMA No.1878/08.

04-03-2010:

Mr. Abid S. Zuberi, Advocate for the appellant.

Mr. Sathi M. Ishaque, Advocate for respondent No.2.

Mr. Zafar Alam, Advocate for the respondent No.3.

Registrar Urs Chandio, Keamari Town.

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Appellant has impugned the order passed on CMA No.4457/07 under Order 6 Rule 17 CPC, whereby certain amendments sought in the written statement were allowed. Learned counsel for the appellant contended that the amendments sought are in negation to the settled principle of law and the judgment of this Court in the case reported as Qaid Jauhar & others Vs. Mst. Hajani Hajra & others (2002 CLC 551). It was further urged that entirely new plea has been set up which has changed the complexion of the suit after basing the one taken up in the written statement that was filed earlier.

We have examined the pleadings and the proposed amendments. Indeed the defendant had pleaded the possession without any supporting fact or documents, which he seeks to supplement in the pleading through amendments in the written statement is merely the pleadings the facts or supplementing his position through a document, which are indeed disputed and subject to trial. This is also admitted that the defendant has filed suit No.731/07 which has since been filed after the suit No.768/05 wherein the plaintiff Saeed-ur-Rehman, who is respondent No.3 herein and the defendant No.3 in the suit has pleaded the facts and as are subject matter of amendment which had been allowed through impugned order. The fact remains that all such pleadings will be put to trial. Amendment resisted through instant appeal are already part of pleading in counter Suit No.737/07. It is stated that both the said suit are being tried together, and application for consolidation is stated to be pending. Mr.Abid S. Zuberi, learned counsel for the appellant, states that in Suit No.831/07 wherein the appellant Ahsanullah (who is defendant No.2 in Suit No.831/07) is denied defence on merits as no proper service was affected upon him. Appellant has already filed an application under Rule 159 of Sindh Chief Court Rules is already pending which is being seriously contested.

Mr. Zafar Alam, learned counsel for respondent No.3 has stated at bar that he shall have no objection for consideration of the application and he shall extend his no objection before the learned trial Court when the matter will come up for consideration in Suit No.831/07.

In this view of the matter, we are of the view that once the appellant is given an opportunity to contest the suit No.831/07 then it will hardly affect the merits of his case and the amendments sought could not be of much significance as such defence will always be subject to trial. Under the circumstances and in view of the foregoing, the appeal is being disposed of with no order as to costs. It may further be observed that by allowing amendments in the written statement, order passed in Suit No.768/07 for appointment of receiver or on injunction application will not be affected.

JUDGE

Nadeem