Amendment of Pleadings Allowed Due to Change in Ownership During Pendency of Suit – High Court Judgment
ترمیم دعویٰ کی اجازت — مقدمے کے دوران ملکیت کی تبدیلی پر ہائی کورٹ کا فیصلہ
مقدمے کے حقائق
ہائی کورٹ کا فیصلہ
ہدایت
Must read Judgement
MUHAMMAD ZAMAN---Petitioner
Versus
SIRAJ-UL-ISLAM and 11 others---Respondents
Civil Revision No.1142 of 2012, decided on 13th March, 2013.
(a) Transfer of Property Act (IV of 1882)---
----S. 43---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.VI, R.17-
--Suit for recovery of sale consideration and damages---Amendment of pleadings---Vendee filed
such suit after gift in favour of his vendor was declared to be null and void---Devolving of suit
property upon vendor after death of donor (his father) during pendency of suit---Vendee's
application for amendment of plaint for seeking relief of declaration of title on basis of
sale in his favour by vendor--- Validity--- Amendment in pleadings, if essential for
determination of real questions in issue between parties, could be allowed at any stage of
proceedings---Non-allowing of genuine and proper amendment would create legal problems for
applicant under O. II, R. 2, C.P.C. and constructive res judicata---Amendment emanating from
facts mentioned in plaint could not be refused---Suit for specific performance could be changed
into a suit for declaration and vice versa---Addition of relief for declaration in suit for permanent
injunction would not alter nature of suit---Death of vendor's father had made vendor true and
lawful owner of suit property---Plaintiff in the present suit could not be refused relief of
declaration as prayed for through amendment application---Allowing amendment prayed for by
plaintiff would save him from future legal complications under O. II, R. 2, C.P.C. and
constructive res judicata---Plaintiff was allowed to file amended plaint in circumstances.
Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 and Niamatullah Khan and 10
others v. Additional District Judge Banuu at Lakki Marwat and 3 others 1994 MLD 2332 ref.
Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and
Nizamullah and others v. Gohar Taja and others 2003 YLR 2008 rel.
(b) Civil Procedure Code (V of 1908)---
----O.VI, R.17, O.11, R.2 & S.11---Specific Relief Act (I of 1877), Ss.12, 42 & 54---Amendment
of pleadings---Scope---Such amendments, if found necessary for determination of real questions
in issue between parties, could be allowed at any stage of proceedings---Word "proceedings" as
used in 0. VI, R. 17, CPC could not be confined to proceedings of suit alone, but would include
that of Appellate/Revisional Court and of the Supreme Court---Amendment emanating from
facts mentioned in plaint could not be refused---Non-allowing genuine and proper amendment in
pleadings would create legal problems for applicant under O. II, R. 2, C.P.C. and constructive res
judicata---Suit for specific performance could be changed into a suit for declaration and vice
versa---Nature of suit of permanent injunction would not stand altered by adding therein
relief for declaration---Principles.
Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 and Niamatullah Khan and 10
others v. Additional District Judge Banuu at Lakki Marwat and 3 others 1994 MLD 2332 ref.
Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and
Nizamullah and others v. Gohar Taja and others 2003 YLR 2008 rel.
Zia-ur-Rehman Khan for Petitioner.
Mian Saadullah Jandoli and Kasif Jan for Respondents.
Date of hearing: 13th March, 2013.
JUDGMENT
MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner being plaintiff, through
instant revision petition has questioned the judgment/order dated 4-10-2012 of Civil Judge-V,
Charsadda whereby his application for permission to amend his plaint was disallowed.
- The brief but the material facts leading to the present controversy are that the suit
property being originally owned by one Ahmad Khan deceased, devolved upon his son Ismail
Khan and his six daughters. The said Ismail Khan and his few sisters alienated the property in
favour of his sons (sons of Ismail Khan) by way of a gift vide Mutation No. 365 dated 22-6-
- Thereafter an area of 8 Kanals was sold to present plaintiff/petitioner by way of registered
Sale-deed bearing No. 102 dated 10-4-2000 by the so
ns of Ismail Khan i.e. the donees. The said
gift mutation and registered sale-deed were later on challenged by way of two separate Suits
bearing No.97/1 and 109/1 of 2000. Both the suits were decreed by declaring the gift and the
above said sale as null and void and these findings were upheld up to the Apex Court.
- The plaintiff/petitioner being bona fide purchaser of the portion of the property, filed
instant suit against Ismail Khan and his sons for recovery of sale price and damages etc. The
decree-holder of the previous two civil suits by then had applied for execution of the decrees in
their favour but the plaintiff/petitioner by claim-ing himself to be the bona fide purchaser of
the suit property resisted the execution petition by trying to retain the possession of the area
purchased by him but his this effort also failed up to the Apex Court.
- During the pendency of the present suit, Ismail Khan son of Ahmad Khan, defendant
No.4, died and his share in the legacy of his father Ahmad Khan devolved upon his legal heirs
i.e. the defendants, the donees of the gift mutation. So in the given scenario, the petitioner filed
an application before the trial Court to seek permission for amendment of his plaint as his
vendors having defective title at the time of the sale in his favour, have become lawful owners of
the suit property during pendency of his suit. So, besides other claims, he be allowed to ask for
the property purchased by him by way of suit for declaration of his title. His said application was
turned down by the trial Court vide its judgment/order dated 4-10-2012. Hence, present revision
petition on the ground that refusal of his prayer for amendment is patently illegal and is the
result of unlawful exercise of jurisdiction.
The learned counsel for the petitioner in support of his submissions placed reliance on the
cases of Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 Supreme Court
345), Javaid Iqbal v. Abdul Aziz and another (PLD 2006 Supreme Court 66) and Niamatullah
Khan and 10 others v. Additional District Judge Bannu at, Lakki Marwat and 3 others (1994
MLD 2332).
- The respondent No. 10 (one of the decree-holders of civil suit) was also impleaded as a
party (who was not a party before the trial Court) only for the reason that she, in her execution
petition, was trying to seek the possession of the property in possession of the present petitioner.
The main contention of the learned counsel for respondent No.10 was that since the claim of
petitioner was turned down up to the Apex Court to retain the possession of suit property, so her
impleadment as respondent in the present revision petition is against the law and petitioner has
no concern whatsoever with the execution of her decree and thereby interim injunction issued in
favour of the petitioner in civil revision is against the law having no legal effect against her
rights.
ˁ
- Learned counsel for the remaining defer defendant/respondents contended that the
amendment asked for was rightly refused by the trial Court as it was going to change the entire
nature of the suit which under the law is not permissible.
-
Learned counsel for the parties were heard and record of the case was perused.
-
Perusal of the record would reveal that the petitioner had filed instant suit against his
vendors and their father Ismail Khan for recovery of sale consideration as well as damages etc.
but during the pendency of the instant suit, the father of his vendors namely Ismail Khan passed
away and the defendants inherited his property and became lawful owners by way of inheritance.
Though they had initially sold away the property claimed by the present petitioner vide
registered sale-deed 102 dated 10-4-2000 but the ownership of his vendors by way of above said
gift mutation was declared null and void by the competent Court of law and thereby the sale in
favour of petitioner automatically crumbled down being the outcome of above said gift mutation.
These findings were upheld up to the apex Court and the claim of present petitioner to be the
bona fide purchaser was not accepted at that time. So in the circumstances, the only way left with
the present petitioner was to ask for his sale consideration paid at the time of purchase of his
property as well as damages against the vendors and their father Ismail Khan.
- The death of father of his vendors during pendency of the instant suit has now changed
the overall scenario as the property owned by Ismail Khan legally devolved upon his sons and
they became true and lawful owners of the property during pendency of his suit. This situation
compelled the petitioner to ask for the amendment of his plaint by asking for declaration of title
on the basis of sale in his favour. Now the simple questions for consideration before us would be
as to whether the petitioner in the given circumstances can ask for amendment of his plaint;
whether such amendment under the law is permissible and as to whether the matter in hand was
dealt with by the trial Court, in accordance with law on the subject.
- The law with regard to amendment of pleadings is settled by now. Order VI, Rule 17 of
C.P.C. deals with the amendment of pleadings which for ready reference is reproduced below:--
"Rule 17. Amendment of pleadings.---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 questions in controversy between the parties."
A look at the above provision of law would make it abundantly clear that amendments in
pleadings which are necessary for the determination of the real questions in controversy between
the parties can be allowed at any stage of the proceedings. The word proceedings as used in the
above quoted rule can in no way be confined to the proceedings of a suit alone. The proceedings
can also be that of appellate/ revisional Court. Even the proceedings before the apex Court would
also be covered under the simple and plain language of the law. The amendments in the
pleadings in appropriate cases have been allowed even by the Apex Court. The purpose behind
such a vast and broad scope of the provision of law is nothing else but to determine and decide
the actual and real questions in controversy between the parties so that the disputes between the
parties be decided in one-go and they be saved from further litigation and other legal
complications of the future. If proper and genuine amendment in pleadings is not allowed then it
may create legal problems under Order II Rule 2 of C.P.C. and constructive res judicata for
applicant. The real questions in controversy between the parties are those which are under the
issues. The question of sale in favour of petitioner is already in issue and the amendment asked
for will not change the nature of suit but would be of the sort which can lead the Court to decide
all the questions in controversy between the parties. The developed law on the subject lays
simple embargo on permission for amendment of pleadings and, that is, that it may not change
the cause of action so as to make it a totally new suit. It cannot be refused where it is emanating
from the facts mentioned in the plaint. In the case of Nizamullah and others v. Gohar Taja, and
others 2003 YLR 2008, it was held as under:--
"It is by now well-settled that amendment in pleadings cannot be refused if this is
emanating from the facts mentioned in the plaint especially when it does not tend to change the
cause of action. No doubt the petitioner primarily instituted a suit for declaration but later on
when he came to know that the form of suit was not proper and that prayer for specific
performance of contract was essential for its success, he accordingly made an application for
amendment in plaint which could not have been refused by the Courts below particularly when
there was nothing on the record to show that it was motivated by any mala fides and that when it
emanated from the same bundle of facts narrated in the plaint constituting the cause of action in
the suit."
It was further held as follows:-
"Since there is nothing on the record to show that application for amendment of plaint,
though belated, was motivated by the mala fides no fetish of technicalities can be made to an
extent that the purpose behind them is neglected to
oblivion and only they are allowed to reign
supreme, moreso when their only utility is to provide a stepping stone rather than a stumbling
block in the way of administration of justice."
A suit for specific performance can be changed into a suit for declaration and vice versa.
Similarly a relief for declaration can be added in a suit for permanent injunction and all such
changes would not change nature of the suit. The word "alter" used in the rule gives it a bit wider
aspect than word amendment. If a Court comes to the conclusion that amendment in the
pleadings was necessary to do the complete and substantial justice between the parties, then it
can make an order in this regard to achieve the end of justice and to prevent the abuse of process
of Court. The landmark judgments of the Apex Court in the case of Mst. Ghulam Bibi and
others v. Sarsa Khan and others (PLD 1985 Supreme Court 345) can be referred in this regard.
- Now reverting back to the facts and circumstances of the case in hand would make us to
opine that the death of Ismail Khan, the father of the vendors of the petitioner, has altogether
changed the scenario of the case. This death has made them true and lawful owners of the
property. So, in a suit for recovery of sale consideration along with damages, the petitioner
cannot be refused to seek the declaration of his title in the given circumstances. This will lead the
Court to consider and determine all the controversial questions between the parties. This
permission can also save the petitioner from future legal complications like constructive res
judicata and a bar under Order II Rule 2, C.P.C. The case of Niamatullah Khan supra also can be
referred in this regard.
- We, in the circumstances, have been compelled to allow this revision petition and to
declare the verdict of the Court below being illegal and without lawful authority having no legal
effect on the rights of petitioners. Hence the judg-ment/order dated 4-10-2012 is set aside and
petitioner is directed to file amended plaint.
Parting with the judgment, we will further hold that the trial Court should expedite the
matter and decide the lis between the parties within four months.
SAK/160/P Revision accepted.