Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 77 of 2012
 
Before :
Mr. Justice Muhammad Shafi
Siddiqui
Mr. Justice Khadim Hussain Tunio
 
 
Date of hearing:       18.09.2018.
 
Date of judgment:    02.10.2018.
 
 
Mr. Syed Bahadur Ali Shah, Advocate for the petitioner.
Mr. Abdul Ghaffar Memon, State Counsel.
 
 
JUDGMENT
 
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.
 
 
 
JUDGE