P L D 2026 Balochistan 78

 

P L D 2026 Balochistan 78

Before Muhammad Kamran Khan Mulakhail and Iqbal Ahmed

Kasi, JJ

SALAHUDDIN and 4 others ---Petitioners

Versus

ABDUL ZAHIR and others ---Respondents

C.P. No. 1461 of 2021, decided on 16th October, 2023.

(a) Civil Procedure Code (V of 1908)---

----O.VI, R.17---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Co-sharer

dispute over shamlat land and subsequent sale to third party---

Challenge to agreement affecting petitioners share in joint property---

Amendment sought after disclosure of higher sale consideration---

Amendment of plaint---Whether substitute monetary relief can be

introduced---The petitioners filed a suit for declaration, cancellation,

consequential relief and permanent injunction, claiming co-sharer

rights in shamlat land and challenged an agreement through which

the predecessor of respondents Nos. 1-A to 1-H had allegedly sold the

entire property to respondent No. 3 without their consent---During

pendency of the suit the petitioners discovered that the sale price

under the impugned agreement was higher than the amount earlier

paid to them through arbitrators whereupon they sought amendment

of the plaint to claim substitute monetary relief---The Trial Court

allowed the amendment but the Appellate Court set aside that order,

hence the present constitutional petition---Issue for determination was

whether the petitioners could be allowed to amend the plaint to

incorporate substitute monetary relief without changing the nature

and complexion of the suit?---Held: Substitute relief by way of

monetary benefit was sought as conditional relief which could be

granted if the agreement was not declared void and illegal---By taking

such plea it could not be said that the petitioners had knowledge of

execution of the agreement---Therefore, it was not a case of

contradictory or mutually destructive plea introduced through the

proposed amendment---Case of the party refusing amendment in

genuine cases was most likely to be seriously jeopardised, thus, the

question of amendment in hand was not such an interlocutory matter

which could subsequently be rectified at the time of final decision of

the case---Revisional Court, while allowing the revision, fell into

material irregularity---Moreover, Revisional Court set aside the order

of the Trial Court which was misconceived because the said order did

not fall within the category of case decided ---In such circumstances,

the revision petition was not competent---Impugned order was set

aside---Present constitutional petition was allowed, in circumstances.

Nawabzada Malik Habibullah Khan v. The Pak Cement Industries

Limited and others 1969 SCMR 965 and Ch. Ahmad Din and 2 others v.

The Australasia Bank Ltd., Bahalwal 1971 SCMR 507 rel.

(b) Civil Procedure Code (V of 1908)---

----O.VI, R.17---Amendment in pleadings---Scope---When a plea in the

alternative can naturally arise and co-exist with the main plea, which was not taken in the plaint at the time of filing of the suit, such plea

can be introduced by seeking amendment in the pleadings.

Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005 SC 787 and Haji

Sultan Abdul Majeed (Decd) through Mehboob Sultan and Habib

Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen

and others 2018 SCMR 82 rel.

Syed Manzoor Shah for Petitioners.

Sher Shah Kasi and Muhammad Raza for Respondents Nos. 1-A to 1-

H.

Habibullah Nasar for Respondent No. 3.

Muhammad Ali Rakhshani, Additional Advocate General for the

State.

Date of hearing: 27th September, 2023.

JUDGMENT

IQBAL AHMED KASI, J.---The instant Constitutional Petition filed

under Article 199 of the Constitution of the Islamic Republic of

Pakistan, 1973 ( the Constitution ), carries the following prayer clause:

It is, therefore, respectfully prayed that keeping in view the above

submissions the impugned order dated 15.09.2021 passed by

respondent No.2 may kindly be set aside by means of upholding

order dated 11.03.2021 passed by civil judge-Kuchlak with

regard to allowance of amendment in plaint, in the interest of

justice, equity and fairplay

2. Brief facts of the instant constitution petition are that petitioners

filed a civil suit for declaration, cancellation, consequential relief and

permanent injunction against the predecessor of respondents Nos. 1-A

to 1-H and respondent No.3 with effect that petitioners are co-sharers

with the predecessor in interest of respondents Nos. 1-A to 1-H of

shamilat land bearing Khasra Nos. 323, 324,319, 321 and 341, situated

at Mohal Kona Nasar, Mouza Kuchlak, measuring 18 acres with the

ration of 1/3 shares ( the land in question ) such property was given to

the predecessor of petitioners and the predecessor of respondents Nos.

1-A to 1-H by other co-sharers with mutual and private settlement in

order to set aside their respective shares. The land in question is

comprising of two portions, one portion is located at the upper side of

the main Attozai Road, which pertains to almost 4 acres bearing

Khasra Nos. 319, 341, 321 and 339, whereas, the second portion is

below Attozai Road, pertaining to almost 14 acres, containing Khasra

Nos. 323, 324 and 325. The petitioners/plaintiffs further averred that

few years back, one dispute arose between the predecessor in interest

of petitioners and respondents Nos. 1-A to 1-H on selling of 12 acres,

out of total 18 acres by predecessor of respondents Nos. 1-A to 1-H to

respondent No.3, consequently arbitrators Haji Majeed and Gul

Muhammad were appointed to resolve the controversy between the

parties, who settled down the sharer of the petitioners by means of

monetary benefit Rs.26,00,000/- (Rupees Twenty Six Lac) to the extent

of their shares, out of 12 acres vide agreement dated 18.10.2011,

however, six months back to institution of instant suit, it was revealed upon petitioners that predecessor respondents Nos. 1-A to 1-H sold out

the entire property to respondent No.3 vide agreement dated

14.05.2011, which was subsequently novated through a new agreement

dated 12.06.2012 without consent and knowledge of petitioners, the

petitioners learned about such agreement, when respondent No.3

made an attempt to take possession of the suit property. Thereafter,

petitioners approached private respondents about infringement of

their valuable rights on account of agreement dated 12.06.2012

resultantly, petitioners sought cancellation of the agreement dated

12.06.2012 being void and ineffective upon the rights of petitioners.

3. During the pendency of the suit, it was disclosed to petitioners

vide agreement dated 12.06.2012 that the price of the property was

fixed at Rs.31 per sq.ft., whereas, petitioners were paid through

arbitrators with the rate of Rs.22 per sq. ft. to the extent of 12 acres.

Pursuant to such disclosure petitioners filed an application before the

trial Court for amendment in plaint with effect to add substitute relief

by means of monetary benefit with regard to sold property through

agreement dated 12.06.2012, which was allowed by the Civil Judge,

Kuchlak ( the trial Court ) as substitute relief vide order dated

11.03.2021, but subsequently set aside by the Additional District Judge,

Kuchlak ( the appellate Court ) (respondent No.2) vide order dated

15.09.2021 ( the impugned order ) on account of allowing revision

petition filed by respondents Nos. 1-A to 1-H, hence this petition.

4. Learned counsel for petitioners inter alia contended that the

impugned order dated 15.09.2021 is contrary to fact, law and

principles of natural justice; that the revisional Court misconstrued

provision of Order VI, Rule 17 read with Section 153, C.P.C.; that

substitute relief by means of monetary benefit was sought as

conditional relief, which would be granted if agreement dated

12.06.2012 would not be declared void and illegal; that proposed

amendment will neither change the nature of the suit nor complexion

of the suit.

5. Learned counsel for private respondents opposed the contention

of learned counsel for petitioners on the ground that the claim of

petitioners was straightaway denied by way of filing their written

statemnts, but the petitioners failed to file any replication to the

written statement filed by private respondents; that on one hand, the

petitioners sought cancellation of agreement dated 12.06.2012, on the

other hand, through proposed amendment sought substitute monetary

relief, which is against the law; that the proposed amendments would

change the nature of suit and compilation of the suit; that the

proposed amendments are beyond the scope of Order VI, Rule 17,

C.P.C.

6. We have heard learned counsel for the parties and perused the

available record with their able assistance. As far as the contention of

learned counsel for the petitioners with regard to proposed

amendment is concerned, a contradictory plea is being introduced,

which could change the entire .complexion of the case, we are of the

view that the substitute relief by means of monetary benefit was

sought as conditional relief, which would be granted if agreement

dated 12.06.2012 would not be declared void and illegal. By taking

such a plea it cannot be said that the petitioners also had knowledge of execution of the agreement. Therefore, we do not consider it to be a

case of contradictory or mutually destructive pleas, which is being

introduced through the proposed amendment. At best, it could be a

plea in the alternative that can legitimately be taken in the

circumstances of the case. When a plea in the alternative can naturally

arise and can co-exist with the main plea, which was not taken in the

plaint at the time of filing of the suit, then such a plea can be

introduced by seeking amendment in the pleadings. To hold this view,

we are fortified by the judgment of the Hon ble Supreme Court of

Pakistan in the case of Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005

SC 787, wherein it was held as under:-

6. There is no cavil with the proposition that the proposed

amendment can neither change the complexion of the suit nor

introduce a new cause of action. No amendment will be allowed

where its effect would be to convert the character of the suit.

(Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja v.

Jehangir Khan 1971 SCMR 395, Atlantic Steamer s Supply Co. v.

m.v. Titisee PLD 1993 SC 88 and more so the fundamental

character of the suit including the subject-matter and case of

action cannot be allowed to be substituted. (Ghulam Bibi v. Sarsa

Khan PLD 1985 SC 345, Ghulab v. Fazal Illahi PLD 1955 Lah. 26).

It is, however, to be kept in view that subject to certain

exceptions even alternative and inconsistent pleas may be

allowed to be raised by way of amendment. (Ghulam Ali v.

Pakistan PLD 1960 Kar. 581, Alauddin v. Central Exchange Bank

Limited (PLD 1960 Lah. 446) or a new ground of claim can be

introduced because merely introduction of fresh matter cannot

alter the nature of the suit and leave ought not be refused in

such cases. (Muhammad Essa v. Hasseena Begum 1989 SCMR

476). A line of distinction is to be drawn between an alternative

case and an inconsistent case which are neither synonymous

nor interchangeable. A similar proposition was examined in

case Budho v. Ghulam (PLD 1963 SC 553) wherein it, was held

that no two facts can be said to be inconsistent if both could

have happened and the test of inconsistency is that a plaint

which contains both cannot be verified as true but a party can

put forward more than one source of his right or defence in

which case he is pleading in the alternative. The judicial

consensus seems to be that an alternative or inconsistent plea

can be raised but contradictory and mutually destructive pleas

cannot be taken.

7. It was further held in the case titled as Haji Sultan Abdul Majeed

(Decd) through Mehboob Sultan and Habib Sultan and others v. Mst.

Shamim Akhtar (Decd) through Mah Jabeen and others 2018 SCMR 82.

8. Allowing or refusing to allow amendment of pleadings is an act,

which hits the very root of attack for the defence of a party, as the case

may be the parties cannot lead evidence beyond their pleadings and

hence, it effects the production of evidence as well. Ultimately, the case

of a party refusing amendment in genuine cases is most likely to be

seriously jeopardized, thus, the question of amendment in hand was

not such an interlocutory entirely, which could subsequently, be

rectified at the time of the final decision of the case, while allowing the revision the learned revisional Court has fallen into material

irregularity.

9. Another important crucial legal point in the instant petition is

that the petitioners filed an application seeking amendment in the

suit, which was allowed by the trial Court and the respondents

assailed that order in civil revision petition before the revisional

Court, whereby the learned revisional Court had allowed the revision

by setting aside the order of trial Court, is wholly misconceived

because by the said order passed by the trial Court, it would not fall

under the category of case decided . In this respect, we are supported

by the following two cases decided by the Hon ble Supreme Court of

Pakistan as under:-

(1) 1969 SCMR 965:

Present: Hamoodur Rehman and Muhammad Yaqub Ali, JJ.

Nawabzada Malik Habibullah Khan

v.

The Pak Cement Industries Limited and others

Civil Procedure Code (V of 1908), S.115 & O.XIII, R.2---Party

permitted by Court to place on record certain documents after

framing of issues--- Such order admitting or declining to admit

evidence oral or documentary not case decided so as to attract

provisions of S.115.

(2) 1971 SCMR 507:

Present: Muhammad Yaqub Ali, M.R. Khan and Waheeduddin

Ahmed, JJ.

Ch. Ahmad Din and 2 others

v.

The Australasia Bank Ltd., Bhalwal

Civil Procedure Code( V of 1908),

S.115 & O.VI, R.17---Words case which has been decided ---Order

allowing amendment of plaint---Not a case decided ---High Court

not competent to entertain revision application against such

order.

The dictum laid down by the Hon ble Supreme Court of Pakistan

loudly suggests that the order passed by the trial Court does not fall

under the category of case decided, thus, in such a situation, the

revision petition is not competent.

Thus, view of the above facts and circumstances, the instant petition

is allowed. The impugned order dated 15.09.2021 passed by the

Additional District Judge, Kuchlak is set aside and the order dated

11.03.2021 passed by the Civil Judge-Kuchlak is upheld.

UN/19/Bal. Petition allowed