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2009 C L C 1388

[Peshawar]

Before Syed Yahya Zahid Gilani, J

MUMTAZ KHAN and 7 others----Petitioners

Versus

AMIR JAN----Respondent

Civil Revision No.192 of 2007, decided on 29th May, 2009.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession and decree for mesne profit---Entitlement to mesne profit---
Trial Court decreed suit filed by the plaintiff under S.9 of Specific Relief Act, 1877 as
well as decree for mesne profit, and Appellate Court had dismissed appeal against
judgment and decree of the Trial Court---Validity---Appellate Court should have first
decided the nature of the suit; that whether it fell under S.8 or S.9 of Specific Relief Act,
1877, qua the right to invoke the upper forum in appellate or revisional jurisdiction---On
remand of case, Appellate Court found that mere addition of an ancillary relief of mesne
profit had not changed the nature of suit clearly filed under S.9 of Specific Relief Act,
1877 and dismissed appeal---Validity---Right to recover mesne profits would involve
determination of right to possess property under a valid title and earn profits from it---
Question of title could not be looked into under a suit for recovery of possession under
S.9 of the Specific Relief Act, 1877, whereunder a plaintiff could be held entitled to a
decree for possession, simply on the ground that he was in possession and was
dispossessed---Decree for mesne profit could not be claimed in a suit filed under S.9 of
Specific Relief Act, 1877---If a plaintiff instead to add and continue with the prayer for
mesne profit, then he would have to declare that his suit was for possession under S.8 of
the Specific Relief Act, 1877---Present suit having been instituted under wrong
impression or improper legal advice to include the relief of mesne profit, the whole
dispute between the parties could not be resolved, unless the plaintiff would exercise his
right of choice to declare that he wanted his suit to be treated under S.9 or S.8 of the
Specific Relief Act, 1877---Impugned decree of the Trial Court was set aside and case
was remanded to the Trial Court with direction that the plaintiff be offered opportunity to
exercise the option by way of amendment in the plaint to bring his suit, either in the
category of suits under S.9 or under S.8 of the Specific Relief Act, 1877.

Foujmal Manaji v. Bikhibai and another AIR 1937 Sindh 161 and Late Mst. Majeedan
through Legal Heirs v. Late Muhammad Nasim through Legal Heirs 2001 SCMR 345 ref.

Gauhar Zaman Kundi for Petitioner.

Salimullah Khan Ranazai for Respondent.

ORDER

SYED YAHYA ZAHID GILANI, J.--- Respondent-plaintiff Amir Jan succeeded in the
trial Court to get a decree for possession under section 9 of the Specific Relief Act as well
as a decree for mesne profit at a rate of Rs.4,000 per year vide judgment dated 23-4-2004.
The appeal against this judgment and decree was dismissed by learned Additional District
Judge-I, Lakki Marwat vide his judgment dated 21-9-2004. Both the judgments and
decrees of trial and Appellate Court were then challenged in Civil Revision No.333 of
2004 filed in this Court wherein it was decided, vide judgment, dated 5-5-2005, that the
Appellate Court should have first decided the nature of the suit that whether it is falling
under section 8 or section 9 of the Specific Relief Act qua the right to invoke the upper
forum in appellate or revisional jurisdiction. Hence, the case was remanded with the
directions to decide the maintainability of appeal or its conversion into revision petition,
accordingly.

Page No. 1 of 2
2. The matter was again heard by learned Additional District Judge-I, Lakki Marwat on
revival of the Civil Appeal of the parties bearing No.106/13 of 2005. He, vide judgment,
dated 873-2007, held that mere addition of an ancillary relief of mesne profit has not
changed the nature of suit clearly filed under section 9 of the Specific Relief Act and
hence, the revision petition would lie. So, the appeal was dismissed.

3. Now the parties are again before this Court in revisional jurisdiction which has been
invoked by the defendants who are petitioners herein.

4. I have availed the opportunity of listening arguments of Mr. Gauhar Zaman, Advocate
for the petitioners and Mr. Salimullah Khan Ranazai, Advocate for the respondent.

5. The moot question before me was that whether a suit filed under section 9 of the
Specific Relief Act can accommodate an ancillary relief for mesne profit without
changing the nature of suit and the forum of next remedy of appeal/revision.

6. We need not indulge in lengthy discussion on this point because the proposition has
been settled long ago. This question was directly involved in the case of Foujmal Manaji
v. Bikhibai and another AIR 1937 Sindh 161 wherein it is clearly held that section 9 of
the Specific Relief Act provides a special and comparatively summary remedy for a
person dispossessed without his consent and the section relates only to possession.
Hence, under this section, a suit for mesne profit will not lie.

7. Needless to mention that right to recover mesne profit involves determination of right
to possess property under a valid title and earn profits from it and this is a trite
proposition of law that question of title cannot be looked into under a suit for recovery of
possession under section 9 of the Specific Relief Act, whereunder a plaintiff can be held
entitled to a decree for possession simply on the ground that he was in possession and
dispossessed within six months of the institution of suit unlawfully, without any reference
to his title. In this respect, the law has been interpreted in the judgment of Honourable
apex Court delivered in the case of late Mst. Majeedan through Legal Heirs v. late
Muhammad Nasim through Legal Heirs 2001 SCMR 345(b).

8. So, answer to the aforementioned moot question is very simple that a decree for mesne
profit cannot be claimed in a suit instituted under section 9 of the Specific Relief Act. If a
plaintiff insists to add and continue with the prayer for mesne profit, then he shall have to
declare that his suit is for possession under section 8 of the Specific Relief Act. In this
view of the matter, the present suit having been instituted under wrong impression or
improper legal advice to include the relief of mesne profit, the whole dispute between the
parties cannot be resolved unless the plaintiff-respondent exercises his right of choice to
declare that he wants his suit to be treated under section 9 or 8 of the Specific Relief Act.
This exercise of right of choice is being extended under the principles of natural justice
and propriety because the plaintiff-respondent was not legal expert and he was not
responsible for choosing the wrong format of his suit, and further that he cannot be held
responsible for the improper advice of his counsel. Now, after dismissal of the appeal, the
decree of trial Court is still intact which is not strictly in accordance with law, as
discussed above.

9. I, therefore, accept this revision petition set aside the impugned decree of the trial
Court and remand the case to trial Court with the directions that the plaintiff be offered
opportunity to exercise the option by way of amendment in the plaint to bring his suit
either in the category of suits under section 9 or section 8 of the Specific Relief Act,
subject to payment of appropriate cost, and thereafter the suit be decided afresh in
accordance with law.

H.B.T./166/P Case remanded.

Page No. 2 of 2
2009 M L D 1368

[Karachi]

Before Amir Hani Muslim and Maqbool Ahmed Awan, JJ

Haji BASHIR AHMED BABBAR---Petitioner

Versus

EXECUTIVE ENGINEER, IRRIGATION NORTHERN JAMRAO DIVISION


MIRPURKHAS, SINDH and 9 others---Respondents

Constitutional Petition No. D-206 of 2004, decided on 28th May, 2009.

(a) Constitution of Pakistan (1973)---

----Art.199---Civil Procedure Code (V of 1908), O.II, R.2---Constitutional petition---


Amendment of petition---Scope---Counsel for respondent had contended that petition
was not maintainable as the prayer in the amended petition was different than the prayers
in the original petition which had by itself brought the relief sought in the petition within
the mischief of O.II, R.2, C.P.C.---Contention was repelled as general principles of C.P.C.
apply to constitutional petition and the amendment in the petition was allowed by High
Court---Even otherwise provisions of O.II, Rs.2, C.P.C., did not apply to constitutional
petition---In the original petition the prayer clauses were not happily worded and by
amendment in the prayer clause, the defect was cured, which, in no way, would change
the complexion of the petition---Moreover, High Court, in exercise of constitutional
jurisdiction, was competent, even to grant any relief, which had not been prayed for.

(b) Sindh Irrigation Act, 1879---

----Ss.22, 23, 24, 25 & 91---Constitution of Pakistan (1973), Art.199---Constitutional


petition---Transferring or changing the source of water---Section 91 of Irrigation Act,
1879, fully applied to the cases where the water courses were sought to be changed or
transferred---Section 91 was mandatory provision and could not be bypassed by the
authority to extend favour to any party---Withdrawal of magisterial powers of the Deputy
Commissioner had no bearing---Before applying S.91 of Irrigation Act, 1879, law
required that Irrigation Department would seek consent of the owners of the water course,
if they intended to transfer the lands of any person on a water course in terms of Ss.22 to
25 of the Irrigation Act, 1879---In case of dispute, procedure was provided, which
included S.91 of Irrigation Act, 1879---In the present case said mandatory provisions had
been overruled while transferring the water course no consent from the petitioner and
other khatedars, who were the owners, was sought---Such act of the Irrigation
Department was violative of the Irrigation Act, 1879---Transferring the source of water
from the water course of the petitioner, was illegal, ex facie and that action of Irrigation
Department was unwarranted and was nullity in the eye of law---Petition was allowed
with direction to Irrigation Authorities to immediately take steps to redress the grievance
of the petitioner and other khatedars, accordingly.

Hassan Mehmood Baig for Petitioner.

Allah Bachayo Soomro; Addl. A.-G. along with Gopaldas, XEN Jamrao Division and Ali
Nawaz Memon, AXEN, Mirpur Sub-Division.

Muhammad Hashim Memon for Respondent No.4.

ORDER

In these proceedings, the petitioner has prayed for following relief:---

(a) Declare that the transfer of 217 acres of land of respondent No.4 to the watercourse
No.BA/1 AR, West Branch of Jamrao Canal is illegal, void, mala fide and without any

Page No. 1 of 4
lawful authority as no compliance of mandatory provision of section 91 of Sindh
Irrigation Act, 1879 is made.

(b) The respondents Nos.1 and 2 and their subordinate be directed to stop the illegal
supply of water to respondent No.1, not to deprive the petitioner from his legal share of
water and to distribute the water justly as per legal procedure and irrigation laws.

(c) The respondent No.3 be directed to take legal action against the respondents Nos. 1
and 2 for their unlawful act and for illegally supporting Qurban Ali Shah.

(d) The respondents Nos. 4 and 5 be directed to take legal action against the assailants
and armed persons present at the water course.

(e) Any other relief, which this Honourable Court deems fit and proper, may be granted to
the petitioner.

The petitioner has pleaded that he has agricultural lands on watercourse No.BA/I.AR
from West Branch Jamrao Canal, Mirpurkhas along with other Khatedars. These lands of
the petitioner and of their Khatedars were settled at ramouse water courses including
water course No.1-L, 5-L and 6-L of Male Minor. The petitioner and other Khatedars
were facing shortage of water since 1991 had moved a joint application to the Secretary
Irrigation, who sanctioned the water course direct outlet for cultivation of an area
'admeasuring 863-06 Acres, which included lands of the petitioner as well. It is pleaded
that grant of water course direct outlet was conditioned upon the fact that expenditure
involved in implementing of such sanction shall be borne by the petitioner and other
khatedars.

The petitioner claims that the entire amount for construction of the outlet and adjusting
the module was jointly paid by them and since 1994 it is functional. The petitioner claims
that he and the other khatedars are getting supply of water to their lands from the said
outlet till date. It is further pleaded that all of a sudden in 1997 the share list was
manipulated and prepared at the instance of Respondent No.4 and when it was objected
to it was recalled and thereafter the respondent No.4 filed a Suit bearing No.37/2004
challenging the withdrawal of the said share list. However, the said suit was withdrawn
by him when the manipulated share list which was withdrawn, was restored.

The Irrigation Department thereafter had transferred the land of the petitioner and private
respondents on the water course of the petitioner, which is in use of the petitioner and
other khatedars unauthorizedly without their consent in deviation of the procedure
provided in the Irrigation Act, which action of the Irrigation Department has been
challenged in these proceedings.

It is contended by the counsel for the petitioner that after filing of present petition a Suit
bearing No.1 of 2005 was filed by the petitioner in the Court of Senior Civil Judge,
Tando Allahyar which was withdrawn under the direction of this Court. The petitioner
has also modified the prayer clause by making application of amendment. We have
perused the prayer clause in the original petition and in the amended petition. We do not
find any substantial difference between them except that the prayer clauses in the original
petition were not happily worded and in fact the prayers made in the amended petition
were almost similar, but are better worded. The petitioner also impleaded respondents
Nos.5 to 10 by making an application under Order I, Rule 10, C.P.C. as they were also
getting water with the respondent No.4 from the petitioner's water course. Notices were
issued but nobody has turned up.

Before hearing the matter we had put to notice that we will hear the matter and decided it
at Katcha Peshi level to which all counsel had consented.

The counsel for the petitioner has contended that in the comments filed by the
respondents Nos.1 and 2, it has been stated that provision of section 91 of the Irrigation
Act, 1879 has come to an end in view of the fact that Magisterial powers of the Deputy
Commissioner have been withdrawn in the recent set up of the reforms introduced in the
District Government.

Page No. 2 of 4
We have asked the learned Addl. A.-G. to satisfy this Court as to whether section 91 of
the Irrigation Act is applicable. He candidly concedes that the section 91 is still
applicable and it has not lost its efficacy as has been pleaded in the comments.

The learned counsel for the petitioner states that the comments of the respondents Nos. 1
and 2 are misleading and no suit is pending in regard to the subject proceedings either
from the side of the petitioner or from the side of the respondents. This statement has not
been controverted either by the learned Addl. A.-G. or by the counsel for respondent
No.4. It is however, stated by the Addl. A.-G. that the Government has filed a civil
revision against the petitioner which is pending adjudication. The said revision will have
no bearing in deciding the present proceedings. The learned counsel for the petitioner in
substance has argued that the transfer of lands on water course of the petitioner and other
Khatedars was without their consent and was violative of the provisions of sections 22 to
25 and 91 of Irrigation Act which is causing damage to their crops for want of water and
is causing losses to the petitioner and other khatedars as on transfer of water course the
scarcity of water has increased. He further states that this order of transfer was procured
by respondent No.4 on account of his influence being M.N.A. and the Government has
overlooked the mandatory procedure laid down under the Irrigation Act, 1879, while
extending benefit to the respondents Nos.4 to 10.

We have asked the Executive Engineer and learned Addl. AA.-G. to show us from the
record that procedure which was adopted by the Government while transferring the lands
of the respondents Nos.4 to 10 on the water course owned by the petitioner and other
khatedars, but they could not place before us a single document to establish that the
transfer of the lands of respondents Nos.4 to 10 on the water course of petitioner and
others was made in accordance with Irrigation Act.

The learned counsel for the respondent No.4 on the other hand has argued that the
petition is not maintainable as the prayer in the amended petition was different than the
prayers in the original petition and this by itself brings the relief sought in the petitioner
within the mischief of Order II, Rule 2, C.P.C. We with profound respect do not find any
force in the contention of the learned counsel as general principles of C.P.C. apply to writ
petition and the amendment in the petition was allowed by this Court, therefore, the
arguments are misconceived. Even otherwise the provisions of Order II rule 2, C.P.C. as
such do not apply to constitutional petition.

On perusal of the prayer clause we can say that in the original petition the prayer clauses
were not happily worded and by amendment in prayer clause the defect was cured which
in no way change the complexion of the petition. Moreover, this Court in exercise of
constitutional jurisdiction is competent even to grant any relief, which has not been
prayed for, therefore, the contention of learned counsel is misconceived.

We are clear in our mind that the section 91 of the Irrigation Act fully applies to the cases
where the water courses are sought to be changed or transferred. It is mandatory
provision and cannot be bye-passed by the authority to extend favour to any party. The
withdrawal of Magisterial powers of the Deputy Commissioner has no bearing. There is
an amendment in law, whereby the word Collector used in statute is to read as D.-G.
(Revenue). Moreover, before applying section 91 of the Irrigation Act, the law requires
that Irrigation Department shall seek consent of the owners of the water course if they
intend to transfer the lands of any person on a water course in terms of sections 22 to 25
of the Irrigation Act and in case of dispute procedure is provided which includes section
91. Therefore, in the present case these mandatory provisions have been overlooked
while transferring the water course. No consent from the petitioner and other Khatedars,
who are the owners, was sought and this act of, the Irrigation Department was violative
of the Irrigation Act.

The consent of petitioners and other Khatedars, who own water course, having not been
sought coupled with non-compliance of the procedure laid down in the Irrigation Act of
not invoking the provisions of section 91, we are of the view that transferring the source
of water from the water course of the petitioner, was illegal. Ex facie, this action of the
Irrigation Department was unwarranted and is nullity in the eye of law. We accordingly

Page No. 3 of 4
allow this petition and direct the Irrigation authorities to immediately take steps to redress
the grievance of the petitioner and other Khatedars in terms of the prayers clauses and
restore the water course of the petitioner and other khatedars to its original position as it
stood before the transfer of water course of respondents Nos.4 to 10, at their costs, within
one moth from today.

H.B.T./B-21/K Petition allowed.

Page No. 4 of 4
2009 M L D 1082

[Karachi]

Before Khalid Ali Z. Qazi, J

JAMIL UR REHMAN---Plaintiff

Versus

ANISUR REHMAN---Defendant

Civil Suit No.63 of 2006, and C.M.As. Nos. 4639 of 2006, 694 of 2007, decided on 22nd
May, 2009.

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

----O. VI, R.17---Amendment of pleadings---Principles---Plaintiff sought amendment of


plaint claiming that nature and complexion of suit would not be changed by proposed
amendment---Validity---Amendment in plaint could be allowed at any stage, even by first
and second appellate Court or in revision or even in appeal before Supreme Court---
Amendment sought in plaint would not change nature and complexion of suit and
amendment in prayer clause was a consequential relief and was arising out of same cause
of action---To avoid multiplicity of proceedings and to do substantial justice,
amendments as proposed in application were necessary for the purpose of determining
real matter in controversy---Application was allowed in circumstances.

1991 Law Notes (Karachi) 645; 1945 Mad. 248; PLD 1984 Kar.97; 1995 MLD 397; PLD
2003 Kar. 598; 2001 MLD 1037; PLD 2003 Kar. 598; 2001 MLD 1037; PLD 1985 SC
153; 1988 MLD 552; 2000 SCMR 1305; PLD 1985 SC 133; 1980 CLC 1866; 1977 SC
284; PLD 1995 Quetta 5; PLD 1996 Lah. 429; 2008 CLC 946 and PLD 1985 SC 345 ref.

2003 SCMR 379 fol.

(b) Specific Relief Act (I of 1877)---

----Ss.8, 42 & 54---Civil Procedure Code (V of 1908), O.XL, R.1---Receiver,


appointment of---Pre-conditions---Plaintiff claimed to be the real owner of suit property
and alleged defendant to be his Benamidar---Plaintiff sought appointment of receiver to
collect rent and look after the suit property---Validity---For the purpose of O. XI, R.1
C.P.C. party seeking appointment of receiver over property involved in suit, had to prove
at such interlocutory stage of suit itself by means of cogent evidence that property
involved was at great risk and danger of getting destroyed at the hands of other party,
which was likely to cause irreparable loss to the party and, therefore, it was most
essential that a receiver should be appointed to take over possession of such property---
Validity---Until and unless plaintiff could prove his case satisfactorily to entitle him to
decree of declaration to the effect that he was actual and original owner of suit property
and he had paid entire amount in respect of suit property and transaction in favour of
defendant was Benami, plaintiff could not claim any right, title or interest in rental
amount being earned by defendant from disputed property---High Court declined to
appoint receiver under O. XL, R.1 C.P.C. over suit property---Application was dismissed
in circumstances.

PLD 1987 SC 145; PLD 1975 Kar. 26; 1991 Law Notes (Karachi) 645; 1945 Mad 248
(Full Bench); PLD 1984 Kar. 97; 1995 MLD 397; PLD 2003 Kar. 598; 2001 MLD 1037;
PLD 1985 SC 153; 1988 MLD 552; 2000 SCMR 1305; 1997 MLD 181 (186) (SC
AJ&K); 2000 YLR 2424 (2425) (SC (AJ&K); PLD 1977 Kar. 442 (43); 1992 CLC 2469;
2003 CLC 1333; 2000 MLD 729; 1998 MLD 1844; 2005 YLR 3265; PLD 1997 Kar.
409; PLD 1965 Kar. 584; 2001 MLD 1905; 1974 SCMR 54; 2001 MLD 1905; 1980 CLC
494; 1974 SCMR 54; 1975 PLD 492; PLD 1992 Quetta 59 and 1981 CLC 685 ref.

Muhammad Jameel for Plaintiff.

Page No. 1 of 5
Muhammad Saleem Ibrahim for Defendant.

ORDER

KHALID ALI Z. QAIZ, J.---C.M.A. No.4639 of 2006: This is an application under Order
VI Rule 17 of the Code of Civil Procedure, 1908 praying therein to allow the plaintiff to
amend the plaint in the above matter as there has occurred some inadvertent mistakes,
omissions, typing errors and mis-statement under misunderstanding and
misapprehension, for which, bona fide and fair amendments are necessary for the
purposes of determining the real question in controversy between the parties. In support
of instant application he filed affidavit stating therein that the word with the spelling
"Ejaz", wherever occurring in the plaint, may be allowed to be replaced by spelling
"Ajaz". The name "Muhammad Ejaz and Brothers" may also be allowed to be replaced
with the name "Mohd. Ajaz Bros". On page 2, in para.3, line 3, after the word "supply
business" the words "under the name and style Mohd. Ajaz Bros., and nominated the
plaintiff's and defendant's brother Muhammad Ajaz, as proprietor of the firm against
remuneration", omitted by way of inadvertence mistake and misunderstanding, may be
allowed to be added. Further, on page 2, para 3, line 5, the word inadvertently typed as
"Airport" may be allowed to be replaced as "Port'.

It is further stated in the affidavit that on page 2, para 3, line 14 after the word "Plaintiff"
a "full stop" is to be inserted, and the words and sentences thereafter appearing in the said
para.3, since do not adequately reflects the complete facts, are to be substituted and
replaced as mentioned in para.6 of the affidavit in support of instant application. Further,
on page 3, para.6 , line-5 after the word "Karachi" the words "which shop was purchased
by the plaintiff from its original allottee through agreement of sale dated 12-1-1991, in
the name of the plaintiff's and the defendant's real brother, Mr. Muhammad Ajaz and was
later on got sub-leased by the Defendant" omitted by way of inadvertent and
misunderstanding may be allowed to be added and on page 4, in para.9, line 2, after the
word "plaintiff" the words, figure "i.e. Shops Nos. 1, 2 and 3, Plot No.S.B. 37, (Nabi
Centre), Block-13/A, Gulshan-e-Iqbal, Karachi and Shops Nos. 1, 2, 3 and 4 and offices
bearing G-1 and G-2, Plot No.B-41 (Shazco House), Block-13/A, Gulshan-e-Iqbal,
Karachi", omitted by way of inadvertent mistake, may be allowed to be added.

It is further stated by the plaintiff in the affidavit that on page 5, para 11, the words
figures omitted by way of inadvertent mistake may be allowed to be added as mentioned
in para-9 of the affidavit as well as on page-7; in the prayer clause (a), line 4 after the
word "otherwise" a "full stop" is to be inserted and the words appearing thereafter may be
substituted and replaced as mentioned in para. 10 of the affidavit of instant application
which has been omitted by way of inadvertence.

In rebuttal to the contentions raised by the plaintiff in his application under discussion,
the defendant filed counter affidavit declining the facts mentioned in the answering
application by stating therein that instant suit filed by the plaintiff is hopelessly time
barred and badly hit by the Articles 91 and 20 of the Limitation Act, 1908. As the term to
file such suit is six years; when the right to sue accrues. Reliance is placed on 1991 Law
Notes (Karachi) 645, 1945 Mad 248 (Full Bench); PLD 1984 Kar.97; 1995 MLD 397,
Court was duty bound to examine the question of limitation irrespective of the fact
whether such plea had been raised by the party in his pleadings or not. Reliance is placed
on PLD 2003 Kar. 598, 2001 MLD 1037 and PLD 1985 SC 153. Further, the limitation is
to run, when the fact entitling the plaintiff to have the instrument cancelled or set side
become known to him. The instrument was admittedly (para.18 of the plaint) executed in
October, 1987 when the suit property has been mutated/sub-leased in the name of
defendant and no doubt that the plaintiff had the knowledge of the document in June,
1988, when he himself purchased the two offices namely G1 and G2 in the same project,
therefore, period of limitation started running from October, 1987 and expired in October,
1990. In this regard reliance is placed on 1988 MLD 552, 2000 SCMR 1305 and PLD
1985 SC 133.

It is further rebutted that the amendment in the plaint shall change not only the cause of
action but also alter the character of the suit. The issue of shops and offices at Shaco

Page No. 2 of 5
House has been settled by the learned SCJ/Rent Controller-III, Karachi East from which
plaintiff is not only receiving current rent but also has received a huge amount of his
share and others along with defendant are receiving and have received their share as
mentioned in reply to the application under Order XL, Rule, 1 filed by the plaintiff and
there is no question of settlement of an amount of Rs.28,90,000 is left. Defendant in
support of his contentions following cases have been cited:--

(i) Amendment cannot be allowed to introduce a totally different, new and inconsistent
case or substitute new cause of action for original one 1980 CLC 1866; 1977 SCMR 284.

(ii) the proposed amendment should not go beyond the scope of the original suit. Delay
may not be fatal but conscious silence for long time certainly creates valuable right in
favour of opposite party. Party cannot be allowed to substantially amend the pleadings by
introducing new cause of action or change of the context of the original suit PLD 1995
Quetta 5; PLD 1996 Lah. 429.

I have heard the learned counsel for the parties and perused the material available on
record.

Order VI Rule 17, C.P.C. provides that the Court may at any stage of the proceedings
allow either party to amend his pleading in such a manner and on such terms as may be
just or all such amendment shall be made as may be necessary for the purpose of
determining the real question and controversy between the parties. The power to grant
amendment, being procedural is to be used for the purpose of dispensation of complete
justice. The Court may not hesitate in allowing the amendment to cure the formal defects,
which is bona fide and has been occurred due to mistake of facts or misapprehension.
Reliance may be on 2008 CLC 946 and PLD 1985 SC 345. The proposed amendments as
mentioned in detail in listed-application without changing in the cause of action does not
involve any drastic change in the suit to seek the relief. It is the duty of the Court while
deciding case to take into consideration the facts and circumstances of the case even the
subsequent events which might have come into existence after the institution of the suit.

It is well-settled by now that the amendment in the plaint can be allowed at any stage,
even by the first and second appellate Court or in revision or even in appeal before the
Hon'ble Supreme Court. Reference can be made to 2003 SCMR 379.

It may be observed that the amendment in the plaint will not change the nature and
complexion of the suit and amendment in prayer clause (e) appears to be a consequential
relief and is arising out of the same cause of action.

In my humble opinion in peculiar fact and circumstances of the case to avoid the
multiplicity of the proceedings and to substantial justice amendments as proposed in the
listed-application are necessary for the purpose of determining the real matter in
controversy, therefore, application is allowed. Plaintiff is permitted to file the amended
memo. of plaint within fifteen (15) days with advance copy to the other side. The
defendant is at liberty to file the amended written statement as well within thirty (30)
days from the date of receipt of the copy of amended memo. of plaint of the suit.

2. C.M.A. No.494/2007, this is an application for appointment of Receiver under Order


XL, Rule 1 of the Code of Civil Procedure, 1908 praying therein to appoint a Receiver in
respect of suit property i.e. ' Shop No.2, Shazco House, Plot No.B-41, Block-13/A,
Gulshan-e-Iqbal, Karachi with the power to manage and to collect rent of the suit
property from the tenant, Messrs Meezan Bank Limited, Karachi and to deposit the same
in the Hon'ble Court till further order. In support of instant application plaintiff filed
affidavit stating therein that the suit property bearing Shop No.2, in project namely
Shazco House, Plot No.B-41, Block 13/A, Gulshan-e-Iqbal, Karachi is held by the
defendant as benamidar for the plaintiff and he is the real owner. The defendant had no
source of income except, his salary from the Sui Southern Gas Corporation. The suit
property along with three other shops and two offices in the same project were purchased
out of plaintiff's remittance sent through backing channels more than Rs.70,00,000 or
through non-banking channels about Rs.73,69,926 and otherwise.

Page No. 3 of 5
It is further stated in his affidavit that since he all along had been out of Pakistan, but for
short visits during my vacations, the defendant, being his younger brother, used to look
after his properties held whether in the name of plaintiff or his wife's name or in the name
of his benamidars including the defendant. Plaintiff visited Pakistan in 1999 and
thereafter visited Pakistan in 2005 after about six years. During his absence the defendant
rented out the said property at his back to Kudds' Restaurant and then to the present
tenant Messrs Meezan Bank Limited. During plaintiff's long absence from Pakistan the
defendant executed fake power of attorney, dated 20-10-1998 and also opened joint bank
account in Bank Al Habib Ltd. No.1004-0071046596-50-9 on 5-10-2002 in collusion
with Muhammad Ajaz brother of the plaintiff and the defendant. Defendant has also
prepared a fake power of attorney by forging plaintiff's signatures, as appearing from the
rent agreement, on the basis of which he rented out two offices which are sub-leased in
plaintiff's name along with the suit property and three other shops in the same project
namely Shazco House.

It is further stated that the suit property is in continuous imminent great danger of being
damaged, wasted and dissipated at the hands of the defendant who, though benamidar, is
malafidely dealing with the suit propertys.

In contrast to the contentions raised in C.M.A. No.494 of 2007 by the plaintiff, the
Defendant filed Counter Affidavit and rebutted as well as denied the facts mentioned in
the listed application by stating therein that the application under reply namely C.M.A.
No. 372 has already been disposed of on 8-3-2006 by this Court which is an estoppel by
judgment. As defined in PLD 1987 SC 145 and PLD 1975 Kar. 26. The instant suit filed
by the plaintiff is hopelessly time barred and badly hit by the Articles 91 and 20 of the
Limitation Act, 1908. As the term of file for such suit is six years, when the right to sue
accrues. Reliance is placed on 1991 Law Notes (Karachi) 645, 1945 Mad 248 (Full
Bench), PLD 1984 Kar. 97, 1995 MLD 397, PLD 2003 Kar. 598, 2001 MLD 1037, PLD
1985 SC 153, 1988 MLD 552, 2000 SCMR 1305, 2000 SCMR 1305 and PLD 1985 SC
153.

It is further stated by the defendant that the suit property is in good condition and is being
properly maintained by the tenant who is a bank. It is a composite property of five co-
owners/landlords and rent is also being tendered of five co-owners/landlords and rent is
also being tendered collectively and being distributed equally by the order of Rent
Controller-III; East Karachi, there is no misappropriation neither any imminent danger to
the property. In support of his contentions, defendant cited following cases:

(i) The applicant applying for the attachment of property must show prima facie, that he
has strong case and a good title of the property; 1997 MLD 181 (186) (Supreme Court
AJ&K).

(ii) Mere recital in sale-deed that vendee has taken possession of suit-land was not
sufficient, to prove his possession---vendee having failed to make out case for attachment
of the suit-land and appointment of receiver as visualized by O.XL R.1, Application of
Vendee for attachment of suit-land and appointment of receiver was, rightly dismissed;
2000 YLR 2424 (2425) (Supreme Court (AJ&K).

(iii) Suit nor for mesne profit nor for damages nor for compensation for use and
occupation but merely for declaration that plaintiff's were owners of land; appointment of
receiver held rightly refused; PLD 1977 Karachi 442 (43).

(iv) Application for appointment of a receiver was dismissed for right of parties were yet
to be determined; 1992 CLC 2469, Karachi.

(v) Application for appointment of receiver being frivolous was dismissed with cost;
2003 CLC 1333 Karachi.

(vi) Applicant for obtaining the appointment of a receiver has to establish a prima facie
title to the property; 2000 MLD 729 Lahore, 1998 MLD 1844 Karachi.

Page No. 4 of 5
(vii) The Court on the application made for the appointment of the receiver, looks to the
conduct of the party, who makes the application and will usually see that his conduct has
been free from blame; 2005 YLR 3265, Karachi.

(viii) Application for appointment of a receiver, would have to make out strong prima
facie case; PLD 1997 Karachi 409.

(ix) Balance of convenience was in favour of defendants relief prayed for refused; PLD
1965 Kar. 584, 2001 MLD 1905.

(x) Plaintiff's title to properties disputed, cannot ask for appointment of receiver, person
bona fide in possession could not be deprived of properties; 1974, SCMR 54, 2001 MLD
1905.

(xi) No imminent danger to property, receiver not appointed; 1980 CLC 494, 1974
SCMR 54; PLD 1975, 492.

(xii) Where party was running business for many years it would not be just and
convenient to appoint a receiver, PLD 1992, Quetta 59, 1981 CLC 685.

I have heard the learned counsel for the parties and perused the material available on
record.

It is a settled principle of law for the purpose of Order XL, Rule 1 C.P.C., a party seeking
appointment of a Receiver over the property involved in a particular suit, has to prove, at
such interlocutory stage of the suit itself, by means of cogent evidence, that property
involved in the suit is at a great risk and danger of getting destroyed at the hands of the
other party, so as the same is likely to cause irreparable loss to the party and therefore it is
most essential that a receiver may be appointed and directed to take over the possession
of such a property.

In present case the plaintiff has claimed his right over the suit property which is. in the
name of the defendant but the payment was made by the plaintiff from his own funds as
such the whole 'transaction was benami. The defendant filed his written statement and
counter affidavits while denying the allegations levelled in the plaint and supporting
affidavits and raised certain preliminary objections about the maintainability of the suit. It
is pleaded that the defendant has purchased the suit property form his own funds in his
own name thus he became the lawful true owner, seized and possessed the suit property.

Under the peculiar facts and circumstances of the case, it would suffice to state that until
and unless, plaintiff proves his case satisfactorily to entitle him to the decree of
declaration to the effect that the plaintiff is actual and original owner of the suit property
and has paid the entire amount in respect of the suit property and the transaction executed
on 26-10-1987 in favour of defendant to be Benami, he cannot claim any right, title or
interest in the rental amount being earned by the defendant, from the disputed property.
Hence, the listed-application under Order XL Rule 1, C.P.C. is dismissed with no order as
to costs.

M.H./J-8/K Order accordingly.

Page No. 5 of 5
P L D 2008 Supreme Court 85

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed
Ashhad, JJ

Rana MUHAMMAD HAYAT KHAN---Petitioner

Versus

Rana IMTIAZ AHMAD KHAN---Respondent

Civil Petitions No.2035-L and 2198 of 2005, decided on 8th October, 2007.

(On appeal from the judgment/order dated 5-10-2005 passed by Lahore High Court,
Lahore in W.P.No.16605 of 2005).

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(j)---Sales Tax Act (VII of 1990), Ss.33(4)(a)(f), 34 & 37-A---Partnership


Act (IX of 1932), Ss.25 & 58---District Nazim, election of---Disqualification of
candidate---Rejection of nomination papers---Receipt of refund claim by candidate as
partner of firm against fake invoices---Non-payment of evaded sales tax and penalty by
firm---Initiation of civil and criminal proceedings against candidate for recovery of tax---
Constitutional petition before High Court by candidate against his apprehended arrest as
partner of firm---Acceptance of appeal by Returning Officer filed against rejection of
nomination papers of candidate subject to final decision of constitutional petition---
Subsequent withdrawal of constitutional petition---Appeal by firm against recovery
proceedings before Appellate Tribunal---Order of Tribunal restraining department to
effect recovery from candidate by adopting coercive measures till decision of pending
appeal---Validity---Candidate was aware of such liabilities of his firm towards Sales Tax
Department, which he had not denied---Liability of partner to pay tax dues of firm for the
period when he was its partner, would not cease on account of having ceased to be its
partner subsequently---Effect of withdrawal of constitutional petition was that such order
of Returning Officer stood vacated, thus, disqualification of candidate revived, whereafter
he had not obtained stay order---Tribunal had not prohibited recovery of such tax from
candidate---Failure of candidate to obtain stay order against such recovery would
constitute a sufficient ground to hold that he had been adjudged defaulter of tax and he
had not satisfied such default---Candidate was disqualified to contest election---Supreme
Court directed Election Tribunal to hold fresh elections for office of Nazim---Principles.

F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Central Board of Revenue and
others v. Chanda Motors 1993 SCMR 39; Farzand Ali v. Province of West Pakistan PLD
1970 SC 98; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994
SCMR 1299 and Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713 ref.

Harchandral v. The Popular Metal works PLD 1971 Kar. 925; State of Kerala and others
v. Saroja and others AIR 1987 Kerala 239; Third Income-Tax Officer v. Arunagri Chettiar
1997 PTD 544; Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. 2001 PTD 2349;
Pakistan International Airlines Corporation v. Khalid Waheed and others 1981 SCMR 573
and Ahad Sharif v. laved Tariq 2006 SCMR 1356 rel.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Election of Nazim---Petition for writ of quo


warranto by voter---Maintainability---Voter could ask in which capacity respondent was
holding office of Nazim---Ordinarily aggrieved party in such matters, instead of filing
constitutional petition, must avail remedy under election laws before Election Tribunal.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 rel.

(c) Constitution of Pakistan (1973)---

Page No. 1 of 12
----Arts. 185(3) & 199---Prayer not made in constitutional petition before High Court nor
in petition for leave to appeal before Supreme Court---Effect---Supreme Court, in view of
changed circumstances, could grant such relief in exercise of its inherent jurisdiction and
to do complete justice between parties.

Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 and Hamdullah v. Saifullah Khan
PLD 2007 SC 52 rel.

(d) Constitution of Pakistan (1973)---

----Arts. 185, 199 & 225---Pre-election or post-election dispute---Allegation of illegal


practices or illegal acts---Interference with such dispute by High Court or Supreme Court
in exercise of constitutional jurisdiction---Scope---Disputed questions of facts arising out
of pre-election or post-election disputes should be determined by Election Tribunal---
Such jurisdiction could be invoked if same involved undisputed facts and nothing was
required to be proved---Principles.

Dispute relating to corrupt or illegal practices or illegal acts' alleged to have been
committed during the polling cannot be adjudicated upon by High Court or Supreme in
exercise of constitutional jurisdiction, because these questions require to be established
on the basis of evidence and Supreme Court would never encourage the settlement of
such dispute by invoking its constitutional jurisdiction, except in those cases where there
is undisputed facts and nothing is required to be proved. Therefore, all those disputed
questions of facts arising out of pre-election or post-election disputes should be
determined by the Tribunal, and if there is no dispute of such-like nature, then jurisdiction
of the High Court can be invoked.

Ahad Sharif v. Javed Tariq 2006 SCMR 1356 and Abdul Majeed Khan v. District Return
Officer 2006 SCMR 1713 rel.

Malik Muhammad Qayyum, Advocate Supreme Court, Shaukat Ali Mehr, Advocate
Supreme Court and Rana Muhammad Arif, Advocate Supreme Court for Petitioner (in
Civil Petition No.2035-L of 2005).

A.K. Dogar, Advocate Supreme Court for Respondents (in Civil Petition No.2035-L of
2005).

Sh. Izhar-ul-Haq, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record (on
behalf of Collector, Sales Tax, Lahore) (on Court Notice).

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C J.---These petitions for leave to appeal have


been filed by Rana Muhammad Hayat Khan and Rana Imtiaz Ahmed Khan against the
order of the Lahore High Court, Lahore dated 5th October, 2005 therefore, we propose to
dispose of both these petitions by means of instant common judgment.

2. As per the facts, available in the pleadings of the parties, petitioner Rana Muhammad
Hayat Khan filed his nomination papers to contest elections for the office of District
Nazim, Kasur. The nomination papers so filed by him were objected to by the petitioner
Rana Imtiaz Ahmed Khan before the Returning Officer, District Kasur, alleging that he
being owner of M/s. Faisal Enterprises, having its Registered No.03-97-999-590-55,
engaged in the business of import and export, dishonestly and fraudulently obtained
refund of Rs.1,55,15,523 from the Sales 'Fax Authorities as per Audit Report dated 24th
March, 2003. It was further pointed out that as per the Audit Report, the registered person
i.e. M/s. Faisal Enterprises is also liable for criminal proceedings under sections 37-A and
37-C of the Sales Tax Act, 1990. Accordingly, the Member, Sales Tax recommended
lodging of an F.I.R. against the firm owned by him. On this Rana Muhammad Hayat
Khan filed a Writ Petition No.9640 of 2003 before the Lahore High Court, Lahore,
challenging criminal proceedings but later on the same was disposed of as withdrawn,
therefore, he being wilful defaulter of tax, owe to the Federal Government, by virtue of
section 152(1)(j) of the Punjab Local Government Ordinance, 2001 is disqualified to

Page No. 2 of 12
contest the election of any office of the Local Government. The Returning Officer vide
order dated 16th May, 2005 rejected his nomination papers. In the meantime, the
Additional Collector (Adjudication), vide order dated 14th June, 2005 called upon
petitioner Rana Muhammad Hayat Khan to deposit the amount of Rs.1,55,15,523 and
imposed the penalty under section 33(4)(a)(f) of the Sales Tax Act, 1990, equal to one
hundred per cent. of the tax involved, as well. This order was challenged by the petitioner
Rana Muhammad Hayat Khan in Writ Petition No.16131 of 2005 before the Lahore High
Court, which was allowed and the order of the Additional Collector (Adjudication) was
set aside vide order dated 20th September, 2005. In pursuance of this order, petitioner
Rana Muhammad Hayat Khan was allowed to contest the elections conditionally and
consequently he was declared successful, as such was notified to be District Nazim of
Kasur, resulting in filing of Election Petition under Rule 65 of the Punjab Local
Government Election Rules, 2005, which is pending adjudication. It is pertinent to
mention here that above noted Writ Petition No.16131 of 2005 was withdrawn by the
petitioner Rana Muhammad Hayat Khan on 21st October, 2005. For the sake of
convenience said order is reproduced herein below:-

"Learned counsel for the petitioner states that due to formal defects in the instant petition,
he seeks its withdrawal with the permission to file a fresh one.

2. Dismissed as withdrawn."

However, against the rejection of his nomination papers, petitioner Rana Muhammad
Hayat Khan filed an appeal against the order of Returning Officer dated 16th May, 2005
before the District Returning Officer, wherein the order of Returning Officer was set
aside mainly for the reason that learned Lahore High Court, Lahore in Writ Petition
No.16131 of 2005 vide order of even date i.e. 20th September, 2005 had suspended the
operation of the order of the Additional Collector (Adjudication) dated 14th June, 2005 in
the matter of Mts. Faisal Enterprises, with clear observation that the same is without
jurisdiction, ex pane and passed after the lapse of the statutory period of three years.
Against this order, petitioner Rana Imtiaz Ahmed Khan filed Writ Petition No.16605 of
2005 before the Lahore High Court, Lahore, inter alia, on the ground that the Returning
Officer/District Judge, Kasur misconstrued and misinterpreted the order of the High
Court dated 20th September, 2005, as it is settled proposition of law that the order
suspending the order of recovery of Government duty, only stops the process of recovery
but does net cancel the order itself which continues to hold the field and the defaulter
shall continue to be defaulter, as such the petitioner Rana Muhammad Hayat Khan being
defaulter disqualified from contesting elections or being elected to a local body under the
Local Government Laws. It seems that petitioner Rana Imtiaz Ahmed Khan also sought
indulgence of the Court for making directions to the Appellate Tribunal, Customs, Excise
and Sales Tax, Lahore to decide the appeal filed by M/s. Faisal Enterprises within 60
days. As such learned High Court, vide impugned judgment dated 5th October, 2005,
disposed of the Writ Petition in the following terms:-

"10. The Appellate Tribunal, Customs, Excise and Sales Tax, 2nd Floor, Customs House,
Lahore is directed to decide the appeal filed by. M/s. Faisal Enterprises against order
dated 14-6-2005 passed by Mr. Ghulam Sarwar Qaisarani, Additional Collector
(Adjudication) by or before 19-12-2005. In case the Appellate Tribunal held the
respondents to be liable for the amount due and the liability is not discharged by them, in
accordance with law, they shall be treated as `wilful defaulter' and petitioners or, for that
matter any other voter from the area, can challenge the elections of respondents, in case
they are elected, before any appropriate forum."

Against the above order, both the petitioners i.e. Rana Muhammad Hayat Khan and Rana
Imtiaz Ahmed Khan had filed instant petitions.

3. Before dilating upon the respective contentions of the parties' counsel, it is necessary to
note few important facts, being relevant for discussion at a later stage:--

(a) The Additional Collector (Adjudication) passed an Order-in-Original No.56/2005


dated 14th June, 2005 against M/s. Faisal Enterprises in the following terms:-

Page No. 3 of 12
"7. On the basis of aforesaid facts a show-cause notice was issued to the respondent on
13-5-2005 and first date of hearing was fixed on 21-5-2005. On that date of hearing
neither any reply to the show-cause notice was received nor anybody appeared for
personal hearing. Another date of hearing was fixed on 30-5-2005 and 13-6-2005. Even
on that dates nobody appeared for personal hearing nor any reply to the show-cause
notice was received within the stipulated period. Rather the show cause notice and
hearing notices issued to them were received back to this office with the remarks of the
postal authorities that the respondent is not available at the given address. This fact also
confirms the position of the prosecution that the respondents have not been involved in
any physical business.

8. In view of above, the case is decided ex pane on the basis of available record. The
charges stand established against the respondent as have not been contested by the
respondent. I, therefore, order to recover the evaded amount of sales tax amounting to
Rs.1,55,15,523 additional tax at the rate of one percent of the tax due per month or any
part thereof is ordered to be recovered under section 34 of the Sales Tax Act, 1990 at the
time of deposit of the principal amount. Penalty equal to one hundred percent of the
amount of tax involved is imposed under section 33(4)(a)(f) of the Sales Tax Act, 1990."

(b) Against the above order Appeal No.45/ST/2006 was filed by M/s. Faisal Enterprises
through their counsel before the Collector, Customs, Sales Tax and Federal Excise
(Appeals), Lahore but it was dismissed on 17th February, 2005.

(c) Second Appeal being Sales Tax Appeal No.194/LB/2006 was filed by M/s. Faisal
Enterprises through its counsel before the Customs, Excise and Sales Tax Appellate
Tribunal, Lahore, but without any success as the same has also been dismissed on 13th
May, 2006.

(d) Against the order dated 13th May, 2006, a Reference under section 47 of the Sales Tax
Act, 1990, being STR No.15/2006 was filed by M/s. Faisal Enterprises before the High
Court which is pending adjudication. During pendency of the same, on CMA
No.630/2006 filed in STR No.15 of 2006, order dated 21st December, 2006 was passed
to the effect that applicant has already discharged his liability to the extent of 20% of the
principal amount, therefore, the request that respondent No.1 be restrained from adopting
any coercive measures till the decision of this STR is allowed. Resultantly, matter was
ordered to be fixed in the 3rd week of January, 2007.

(e) Consequently, functionaries under the Sales Tax Act issued notices dated 8th May,
2006 and 18th May, 2006 for effecting the recovery.

4. Learned counsel contended that petitioner Rana Muhammad Hayat Khan and Mr.
Muhammad Mumtaz Khalid were partners of M/s. Faisal Enterprises, which was
dissolved on 5th February, 2002, therefore, legally he was not bound to discharge the
liability of the registered firm and the order of the Collector dated 4th June, 2005,
demanding an amount of Rs.1,55,15,523 with penalty under section 33(4)(a)(f) of the
Sales Tax Act, 1990, equal to one hundred per cent. of the tax involved, was not
recoverable from him.

5. Learned counsel appearing for petitioner Rana Imtiaz Ahmed Khan argued that liability
of outstanding amount, which the petitioner Rana Muhammad Hayat Khan has
deceitfully and fraudulently received from the Sales Tax Department, pertains to the
period commencing from September, 2000 to April, 2001 and according to sections 25
and 58 of the Partnership Act, 1932 the partners of the firm are bound to clear the
liability, notwithstanding the fact that partnership has been dissolved. He further stated
that the plea of dissolution of partnership has been raised by the petitioner Rana
Muhammad Hayat Khan as a device to absolve himself from the liability. He explained
that in pursuance of a resolution dated 19th October, 2005, passed by the partners of M/s.
Faisal Enterprises namely Rana Muhammad Hayat Khan and Mr. Muhammad Mumtaz
Khalid he is very much partner of the firm. Therefore, the argument raised by him is not
acceptable. It was further argued that petitioner Rana Muhammad Hayat Khan not only
owe the civil but also owe criminal liability for which an action was proposed against

Page No. 4 of 12
him, as a result whereof he filed application i.e. C.M. No.630/2006 before the High Court
and succeeded in obtaining restraint order in his favour.

Therefore, according to him, these facts are sufficient to conclude that petitioner Rana
Muhammad Hayat Khan is the partner of M/s. Faisal Enterprises under section 152(1)(j)
of the Punjab Local Government Ordinance and he is wilful defaulter of Rs.1,55,15,523
along with penalty under section 33(4)(a)(g) of the Sales Tax Act, 1990, equal to one
hundred percent of the tax involved, which comes to total amount of Rs.3 crore. As such
his nomination papers were rightly dismissed by the Returning Officer.

6. We have heard the learned counsel for both the sides and have also gone through the
relevant provisions of law. On factual premise of the case, it is to be resolved that liability
of about Rs.3 crore against M/s. Faisal Enterprises admittedly pertains to the period
between September, 2000 and April, 2001, during which the partners of the firm
allegedly in deceitful and fraudulent manner committed fraud with the Government of
Pakistan, claiming refund against the fake invoices. As per record, the firm M/s Faisal
Enterprises (a registered person) was issued an intimation letter on 23rd January, 2002 for
audit and it was called upon to produce record and details which was mentioned in the
letter but instead of complying with the order a writ petition was filed on its behalf in the
Lahore High Court, Lahore claiming that its audit had already been conducted and
department had initiated re-audit of its record without any lawfully authority. The writ
petition was disposed of by the learned High Court with direction to the department to
furnish to M/s. Faisal Enterprises the information available with it, regarding special
circumstances on the basis of which re-audit of the record of the firm has been initiated.
Learned High Court also directed for providing personal hearing to the registered person
so that special circumstances may be explained to it. Accordingly, the firm was furnished
with the details of circumstances which warranted re-audit of its record. Admittedly
opportunity of personal hearing was afforded to registered person during which Mr. Nisar
Ahmad Advocate appeared on its behalf and was explained special circumstances giving
rise to special audit of the registered person. Not only this but after providing personal
hearing, further notice C-No.66, dated 1st January, 2002 was issued to the registered
person for production of record for audit but M/s. Faisal Enterprises did not produce the
record. Thus under these circumstances re-audit was completed on the basis of refund
claim submitted by the M/s. Faisal Enterprises. On completion of audit, M/s Faisal
Enterprises was called to show cause as to why evaded sales tax amounting to
Rs.1,55,15,523 should not be recovered from them along with additional tax besides the
penal action under the law. Despite of issuance of show-cause notice by the Collector
(Adjudication), subsequent their to repeatedly show-cause notices were issued on the
address provided on its registered head office i.e. 147 Grand Battery, Multan Road,
Lahore and ultimately on 14th June, 2005 the Additional Collector (Adjudication) found
them guilty and concluded that the charges stand established against the respondent
which had not been contested by them, therefore, in order to recover the evaded amount
of sales tax amounting to Rs.1,55,15,523 along with additional tax @ 1% of the tax due
per month or any part thereof was ordered to be recovered under section 34 of the Sales
Tax Act, 1990. It was further observed that at the time of deposit of the principal amount
penalty equal to 100`7 of the amount of tax is also imposed under section 33(4)(a)(f) of
the Sales Tax Act, 1990. Against this order an appeal was filed and now STR is pending
adjudication before the High Court.

7. Simultaneously criminal proceedings were also initiated which were challenged by M/s
Faisal Enterprises before the High Court by filing Writ Petition No.9640 of 2003 and
restrained order dated 9th July, 2003 was obtained which reads as under:-

"2. Learned counsel inter alia contends that an audit report on the basis of which
department intends to initiate criminal proceedings is not a material evidence
contemplated in section 37-A of the Sales Tax Act, 1990 to provide for a reason to'
believe that a registered person committed a tax fraud in respect of supply or supplies
made by him. The contention needs consideration.

3. Admit Notice.

C.M. No.2/2003.

Page No. 5 of 12
4. In the meanwhile, subject to notice, no process for personal direct or detention of the
petitioner shall be issued by the respondent revenue, however, this order will not restrain
them from initiating adjudication proceedings to bring home contravention of any
provisions of law by the petitioner as registered person.

The above petition was withdrawn vide order dated 7th June, 2005, which read as under:-

"Learned counsel for the petitioner seeks not to press this petition. However, wishes to
reserve his right to again approach this Court if the issue becomes alive. Allowed.

2. Disposed of as withdrawn."

The perusal of above two orders indicates that the partners of M/s. Faisal Enterprises
were apprehending their prosecution therefore, they rushed to the Court for restrained
order.

8. Learned counsel appearing for Rana Muhammad Hayat Khan emphasized that on
dissolution of the partnership, a fresh registration was issued in favour of new partners of
the firm excluding the name of Rana Muhammad Hayat Khan as back as in the month of
September, 2000, therefore, according to him after dissolution of the partnership, Rana
Muhammad Hayat Khan being form partner is not liable in any manner.

9. The argument so raised by the learned counsel seems to be without any force. To attend
the same reference is required to be made to section 25 of the Partnership Act, 1932
according to which "every partner is liable jointly with all the other partners and also
severally, for all acts of the firm done while he is a partner". This section had been well
taken care by the superior Courts. Reference may be made to Harchandrai v. The Popular
Metal Works PLD 1971 Karachi 925 wherein it has been held that "it is well settled that
liability of one partner is the liability of the other partners jointly and severally". This fact
has also been reiterated by the Indian Supreme Court in State of Kerala and others v.
Saroja and others AIR 1987 Kerala 239. Likewise in Third Income-Tax Officer v.
Arunagri Chettiar 1997 PTD 544 it has been observed that:-

The firm is treated as an entity only for certain purposes. It is not a separate juristic entity
distinct from its partners. A firm cannot be equated to a corporate body. Section 25 of the
Partnership Act, 1932, expressly states that every partner is liable, jointly with all the
other partners, and also severally, for all acts of the firm done while he is a partner.
Section 25 does not make a distinction between a continuing partner and an erstwhile
partner. Its principle is clear and specific, vii.,(sic) that every partner is liable for all the
acts of the firm done while he is a partner jointly along with other partners and also
severally. If a continuing partner is liable to pay the tax due from the firm relating to the
period when he was a partner of the firm there is no reason in principle to hold that the
said liability ceases merely because a partner has ceased to be a partner subsequent to the
said period. The absence of a provision corresponding to the proviso to section 46(2) of
the Indian Income Tax Act, 1922, in the Income Tax Act, 1961, prior to the introduction
of section 188-A in the 1961 Act with effect from April, 1, 1989, does not make any
difference to the position, since the liability of the partners to pay the dues of the firm
does not arise by virtue of Order XXI, rule 50 of the Code of Civil Procedure, which is
attracted by virtue of the said proviso, but on account of the basic nature and character of
a partnership firm. Order XXI, rule 50, merely reiterates the said basic premise; it does
not create a new liability. Section 188-A of the 1961 Act explicitly provides what was
implicit hitherto.

The respondent-assessee, a partner of a firm, retired from the firm on April, 19, 1963, and
for the accounting years relevant to the assessment years 1962-1963 and 1963-1964, the
accounts were duly made up by the partners and the share of profits due to the respondent
paid to him before his retirement. The firm continued with new partners until 1972 when
it was dissolved.

Page No. 6 of 12
To further strengthened the above proposition reference may also be made to Dena Bank
v. Bhikhabhai Prabhudas Parekh and Co. 2001 PTD 2349 wherein it has been observed as
under:-

The principle that where a firm is deemed to be a person and hence a legal entity for a
certain purpose, the liability incurred by the firm in that capacity cannot be enforced
against the partners, will have no applicability if there is a statutory provision to the
contrary. Though the Karnataka Sales Tax Act gives the firm a legal status by treating it
as a dealer and hence as a person for the limited purpose of assessing under that Act,
there is a provision, viz., section 15(2A), in that Act specifically providing that the firm
and each of the partners of the firm shall be jointly and severally liable for the payment of
any tax, penalty or nay amount under the Act. Therefore, the partners cannot rely on that
principle and take shelter behind the status of the firm, where the State proceeds to
recover arrears of sales tax, penalty or other amount due from the firm."

10. It is equally important to note that the Sales Tax Department is authorized to initiate
criminal proceedings under section 37-A of the Sales Tax Act, 1990 to arrest and
prosecute a person who has committed a tax fraud in respect of supply or supplies made
by him. On the basis of audit report the Sales Tax Department initiated criminal
proceedings as well, against petitioner Rana Muhammad Hayat Khan as partner, which
prompted to take refuge under the legal provisions as he filed a writ petition No.9640 of
2003 which was withdrawn subsequently as ' it has been noted herein above. This aspect
of the case itself is sufficient to draw inference that petitioner Rana Muhammad Hayat
Khan was apprehending his arrest being a partner of Mts. Faisal Enterprises.

11. Above all the documents, which have been relied upon on his behalf to argue that he
has retired from the partnership, have not furnished authenticated evidence. Contrary to it
he Rana Muhammad Hayat Khan instituted a Petition No.16131 of 2005 but subsequently
a resolution dated 19th October, 2005 was passed to resolve that said writ petition will be
withdrawn. The contents of the resolution are reproduced here in below:--

"Extraordinary meeting of the partners of M/s. Faisal Enterprises 147-Grand Battery,


Multan Road Lahore was held which was attended by Mr. Muhammad Mumtaz Khalid
and Rana Muhammad Hayat, partners on 19-10-2005 and it was resolved that Writ
Petition No.16131/05 instituted through Mr. Muhammad Atif Habib, Manager, be
withdrawn from the Honourable Lahore High Court, Lahore with permission to file again
a fresh writ petition challenging the entire action of the sales tax authorities including
order dated 14-6-2005 be instituted and for that purpose Mr. Muhammad Mumtaz Khalid
partner was authorized to sign the said petition and all other relevant documents, file
written statement etc. and also to engage counsel for filing said petition in the
Honourable Lahore High Court, Lahore."

12. It is to be noted that the above resolution was filed along with C.M.A. No.1382-
L/2006, notices of which were duly served upon the petitioners through registered post
but no reply of the same has been filed, therefore, on the basis of this document as well it
can safely be concluded that petitioner Rana Muhammad Hayat Khan was fully aware
about civil and criminal liabilities towards the Sales Tax Department.

13. For the better understanding of the proposition, guidelines can be sought from the
following passage from the case of Pakistan International Airlines Corporation v. Khalid
Waheed and others 1981 SCMR 573 which is reproduced herein below:--

"Now, the question of the liability of the directors of a company for a criminal breach of
trust or indeed for any offence by the company is a question of law, therefore, we venture
to think that it would have been better if the learned Judge had given reasons for the
sweeping conclusion reached by him. Be that as it may, although company is a distinct
legal entity which is quite different from its members, including its directors as held in
Saloman v. Saloman 1897 AC 22 this does not alter the fact that a company can only act
through its director and officers, therefore, an allegation of a criminal offence against a
company can only mean that the company's directors and/or officers have committed the
alleged offence and in order to decide, who has committed that offence, the Court has
always to pierce the veil of incorporation, as held by Hamoodur Rehman, C.J., in

Page No. 7 of 12
President v. Shaukat Ali PLD 1971 SC 585. We are aware that -this decision is an order
by the Supreme Judicial Council and not by this Court, therefore, we would clarify that-
we respectfully approve of the observations of the learned Chief Justice in this case on
the necessity of piercing the veil of incorporation. Therefore, merely because a company
is a distinct legal entity from its directors, it does not mean,, as held by the learned Judge,
that the commission of a criminal offence by a company is inconsistent with mens rea on
the part of its directors."

14. Now turning towards the next contention of the learned counsel that petitioner Rana
Muhammad Hayat Khan has been proceeded against ex parte during the process of audit,
therefore, any finding recorded by the Collector (Adjudication) based on such
proceedings has got no legal sanctity.

15. The argument so raised by the learned counsel seems to be without force in view of
the facts narrated hereinabove, according to which the notice of intimation was
challenged by him in the High Court by filing a writ petition, which was disposed of with
direction to provide material to him which necessitated from re-audit of record. In
response to notice issued thereafter, Mr. Nisar Ahmad Khan Advocate appeared on their
behalf being the partner of Mts. Faisal Enterprises but thereafter the representation was
abandoned, as such re-audit report was complied in their absence. Similarly on the basis
of the same, a show cause notice was issued by the Collector (Adjudication) and as no
one appeared despite of service, as such order-in-original was passed on 14th June, 2005.
This order was admittedly challenged in appeal wherein the partners of M/s. Faisal
Enterprises were duly represented and the appeal was dismissed on 17th February, 2005.
Later on, jurisdiction of the Appellate Tribunal was invoked but without any success as
his second appeal was dismissed on 13th May, 2006 and now reference under section 47
of the Sales Tax Act is pending before the Lahore High Court, Lahore. On the basis of
these facts the arguments of the learned counsel cannot be entertained.

16. Learned counsel appearing for Rana Muhammad Hayat Khan contended that as per
ratio in the case of F.A. Khan v. Government of Pakistan PLD 1964 SC 520 which has
been followed in the case of Central Board of Revenue and others v. Chanda Motors 1993
SCMR 39 the order passed in the original proceedings is not final unless it crosses all the
forums setup under that law, in which it can be challenged and the order of the last forum
would be final.

17. As far as the above proposition of law is concerned, there is no dispute with it but the
argument so raised by the learned counsel has to be examined keeping in view section
152(1)(j) of the Punjab Local Government Ordinance, 2001, according to which "a
person shall qualify to be elected or to hold an elective office or membership of a local
Government, if he has not been adjudged a wilful defaulter of any tax or other financial
dues owed to the federal, a provincial, or a local Government or any financial institution,
including utility bills outstanding for six months or more." As it has been stated herein
above I that at least four forums have concluded/adjudged that petitioner Rana
Muhammad Hayat Khan has fraudulently received amount of Rs.1,55,15,523 therefore,
he is liable to pay the same and simultaneously he is also prima facie held responsible for
criminal action.

18. Learned counsel for Rana Imtiaz Ahmed Khan cited the case of Ahad Sharif v. Javed
Tariq 2006 SCMR 1356 and contended that in this case as well respondent was adjudged
defaulter of Zarai Taraqiati Bank Limited under section 152(1)(j) of the Punjab . Local
Government Ordinance, 2001, therefore, he had no lawful authority to be elected for the
office of Nazim/Naib Nazim.

19. At this juncture, reference to section 47 of the Sales Tax Act 1990, as it stood at the
time of filing of STR, is required to be made. In the meantime, process was issued for
effecting recovery and for this reason Rana Muhammad Hayat Khan succeeded in getting
order that coercive measures may not be applied for effecting recovery however, the
recovery has not been stayed, which would mean that the amount outstanding against him
along with his partners has to be recovered.

Page No. 8 of 12
20. Learned counsel appearing for Central Board of Revenue also contended that the
Sales-Tax Department has not been prohibited by the High Court from effecting recovery
except that it has been directed vide order dated 21st December, 2006, not to apply
coercive method to do the needful. Therefore, the judgment in the case of Ahad Sharif
(ibid), relied upon by the learned counsel is fully applicable on the facts of the case in
hand.

21. It is to be noted that these petitions were pending since 2005 and the petitioner Rana
Muhammad Hayat Khan could have obtained stay order from the High Court directing
department not to effect recovery of the outstanding amount till decision of the reference.
The failure on the part of petitioner Rana Muhammad Hayat Khan to obtain stay order
constitutes a sufficient ground to hold that he has been adjudged defaulter of the Federal
Tax and as he has not satisfied the default, therefore, he was disqualified to contest the
election.

22. There is yet another aspect of the case that in terms of impugned judgment of the
Lahore High Court petitioner Rana Muhammad Hayat Khan had agreed to pay 20% of
the original amount, which would mean that liability is not denied by him. Not only this,
the liability to pay the outstanding amount also stands established against the petitioner
Rana Muhammad Hayat Khan in view of the fact that while filing appeal against the
order of Returning Officer dated 6th September, 2005 before the District Returning
Officer, a writ petition being No.16131 of 2002 was filed before the High Court and
obtained stay order in CMA No.01/2005, which is reproduced here in below:-

Notice for 17-10-2005. Since the order impugned is without jurisdiction initiated after the
lapse of the stipulated period of three years and is ex parte, therefore, the operation of the
impugned order is suspended till the next date of hearing.

It is to be noted that in this Writ Petition, order of the Collector (Adjudication) dated 14th
June, 2005 was challenged whereby the petitioner was held liable to make the payment of
outstanding amount along with penalty. The District Returning Officer in view of the said
order accepted the appeal vide order dated 20th September, 2005. Operative para from
the said order is reproduced herein below for convenience:--

9. In view of the above circumstances, there remains no force in argument concerning


default against the candidatures of Rana Muhammad Hayat Khan. Similar is the case of
Muhammad Mumtaz Khalid. Therefore, the appeal filed by Rana Muhammad Hayat
Khan is allowed with the condition that his nomination papers shall be deemed to have
been accepted subject to outcome of the above said Writ Petition. Similarly, the appeal
filed by Sardar Muhammad Atif Nakai is dismissed and the nomination papers of
Muhammad Mumtaz Khalid shall too be deemed to have been accepted subject to
outcome of final result of the aforesaid Writ Petition. Order accordingly. There shall be
no order as to costs.

The above order was challenged by the petitioner Rana Muhammad Hayat Khan in Writ
Petition No.16605 of 2005 which has given rise to instant proceedings. Surprisingly Writ
Petition No.16131 of 2005 has been withdrawn vide order dated 21st October, 2005 as a
result whereof said order has been vacated and thereafter petitioner Rana Muhammad
Hayat Khan has not obtained any stay order. In other words he accepted the verdict and
the basis on which nomination papers of petitioner Rana Muhammad Hayat Khan were
accepted in appeal by the Returning Officer, have also been vanished which would result
in holding Writ Petition No.16605 of 2005 filed by Rana Muhammad Imtiaz Khan has
borne fruit, consequently the whole edifice, built by the High Court in Writ Petition
No.16131 of 2005 on 20th September, 2005 is bound to collapse.

23. Learned counsel for Rana Muhammad Hayat Khan again

emphasized that it was not liability of an individual but of Mts. Faisal Enterprises
therefore, withdrawal of petition would have no bearing in the case in hand. This
argument need not to be discussed in view of the observation made herein above.

Page No. 9 of 12
24. One of the most important pleas on behalf of Rana Muhammad Hayat Khan by his
counsel was that after declaring him successful by the Election Commission of Pakistan,
Rana Imtiaz Ahmed Khan has challenged his Election by filing Election Petition before
the Election Tribunal wherein same relief has been claimed, therefore, instant petitions
are liable to be dismissed. He further submitted that now by the time it is well settled that
election disputes have to be resolved by the Tribunal appointed under the relevant laws
and constitutional jurisdiction of Superior Courts cannot be availed for the redressal of
grievance by aggrieved person.

25. On the other hand learned counsel appearing for Rana Muhammad Imtiaz Ahmed
Khan simultaneously contended that in every elections, there are two types of disputes;
firstly pre-election disputes and; secondly post-election disputes. There is no bar to
invoke constitutional jurisdiction of the Court for resolution of pre-election dispute by
invoking Constitutional jurisdiction of the Court, which is higher than an ordinary
jurisdiction of a Court under a statute, being, in any case, subordinate to the Constitution.
Reliance in this behalf has been placed by him Farzand Ali v. Province of West Pakistan
PLD 1970 SC 98, Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994
SCMR 1299, Sanaullah Khan v. District Returning Officer PLD . 2005 SC 858, Ahad
Sharif (ibid) and Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713.

26. We have heard the learned counsel for the parties. Before attending to this proposition
under consideration it is necessary to take note of some important events which have
already been noted herein above, particularly the fact which has already been emphasized
herein above namely District Returning Officer accepted the appeal vide order dated 20th
September, 2005 in view of the fact that before the commencement of hearing of appeal
petitioner Rana Muhammad Hayat Khan through its firm Mts. Faisal Enterprises
instituted Writ Petition No.16131 of 2005 challenging the order of Additional Collector
(Adjudication) dated 16th June, 2005 and succeeded in getting its operation suspended
therefore, the learned District Judge accepted his appeal and against said order
Constitutional Petition was filed by both the candidates. However, Writ Petition
No.16131 of 2005 filed by Mts. Faisal Enterprises has been withdrawn on 21st October,
2005 as a result whereof when the foundation on the basis of which relief was granted by
the learned District Returning Officer has been removed the whole edifice, built on the
same, is bound to collapse. As it has been noted hereinabove that assuming that petitioner
Rana Muhammad Hayat Khan has excised his relation with the partnership business but
he could not absolve himself from the liability, severally and jointly. Thus in such view of
the matter we have no option but to conclude that he has been adjudged to be liable to
refund the amount which he has obtained deceitfully from the Sales Tax Department, he
stands disqualified to hold the office of District Nazim, Kasur.

27. This aspect of the case poses another question i.e. as to whether the Election Tribunal
even now is required to determine the qualification of petitioner Rana Muhammad Hayat
Khan to hold the office? Answer would be that as at the time of filing of nomination
papers he was not qualified to contest the election and his this disqualification if
remained suspended for a short period on account of order of the Court passed in Writ
Petition No.16131 of 2005 but still it has been revived, no sooner said petition was
withdrawn. It may be noted that petitioner filed Writ Petition No.16605 of 2005 to
challenge the order of the District Returning Officer which was based on interim relief of
the High Court obtained by the petitioner in Writ Petition No.16131 of 2005 therefore
natural corollary would be that petition filed by the petitioner Rana Imtiaz Ahmed Khan
challenging the order of the District Returning Officer has borne fruit as it has already
been observed hereinabove. Thus in such situation Election Tribunal would not be in a
position to give relief to the petitioner-Rana Muhammad Hayat Khan because this Court
can examine the impugned judgment dated 5th October, 2005 in its Appellate Jurisdiction
but the Tribunal being a subordinate forum cannot dilate upon merits of the impugned
order. So in such situation Rana Imtiaz Ahmed Khan being one of the voters, otherwise
interested, can question that in which capacity Rana Muhammad Hayat Khan holding the
office of District Nazim Kasur. Although such a prayer was not made in the petition
before the High Court as well as in the petition for leave to appeal before this Court but in
view of changed circumstances, in exercise of inherent jurisdiction-and to do the
complete justice between the parties, relief can be given to Rana Muhammad Hayat
Khan. Reference in this behalf may be made to Amina Begum v. Ghulam Dastgir PLD

Page No. 10 of 12
1978 SC 220. This Court in the case of Hamdullah v. Saifullah Khan PLD 2007 SC 52
has held that Constitutional Petition in the nature of quo warranto is maintainable before
the High Court. Applying this principle on the case in hand we can reiterate that as
petitioner Rana Muhammad Hayat Khan has been adjudged to be defaulter in view of the
above discussion therefore he is disqualified to hold the office of District Nazim Kasur.

28. Now turning towards another aspect of the case namely ordinarily instead of filing
Writ Petition, aggrieved candidate must avail remedy under the Election Laws before the
Election Tribunal, as it has been held in Election Commission of Pakistan v. Javed
Hashmi PLD 1989 SC 396.

29. Learned counsel for petitioner Rana Muhammad Hayat Khan has placed much
importance on the principle laid down in this judgment but in our consideration it would
not be attracted, reason whereof would be disclosed later but at this juncture it may be
noted that according to the provisions of Article 225 of the Constitution, no election to a
House or a Provincial Assembly shall be called in question except by an election petition
presented to such Tribunal in such a manner as may be determined by the Act of Majlis-e-
Shoora [Parliament]. Admittedly instant case does not pertain to the election of a House
or a Provincial Assembly. The object of challenging the elections of the Members of a
House or the Provincial Assembly by means of Election Petition under Article 225 of the
Constitution has been discussed in a case of Niaz Ahmad v. Province of Sindh PLD 1977
Karachi 604 relevant portion whereof has been reproduce in Javed Hashmi's case. For
sake of convenience same is reproduced herein below:-

"It was on this line of arguments as to the interpretation of Article 225 that plea was
raised that the Constitution itself prohibits the disputes relating to corrupt or illegal
practices etc. being called in question by any other mode or manner except by way of
election petition under the provisions of the Representation of the People Act, 1976. This
Act, I may say at this stage for making the position clear is no doubt the law
contemplated by the provision made in Article 225. There can also be no manner of doubt
that the Representation of People Act, 1976 does provide adequate machinery for the
challenge that may be made to the election of any of the Members of the National
Assembly who has been declared to have successfully returned at the General Elections
held on the 7th March, 1977 on the ground of `rigging of the elections'.

The learned Chief Justice based his decision on the opinion of Cornelius, CJ., in Jamal
Shah v. Election Commission, PLD 1965 SC 1 while construing Article 171 of 1962
Constitution and further its affirmance later in Farzand Ali v. Province of West Pakistan
PLD 1970 SC 98 and also proceeded to distinguish the observations of Hamoodur
Rehman, CJ in Farzand Ali's case as under:

"In the case before their Lordships of the Supreme Court the challenge to the election of
the Members of the National Assembly concerned was made on the ground of their pre-
election disqualifications and also on the ground which could not have maintained an
election petition. It was due to this admitted position, namely, absence of adequate
remedy being available that challenge to the elections through constitutional means under
sub-clause (b)(ii) of clause (2) of Article 98 of the Constitution of 1962 was held to be
competent.

I may, however, clarify that the observations of the Supreme Court in Farzand Ali case
pertain to the interpretation of Article 171 vis-a-vis Article 98 of the Constitution of 1962,
the former being no parallel in its language to Article 225 of the present Constitution, but
in any case 'for the purpose of the present case, it would suffice to observe that the
challenge to the elections on the grounds of illegal practices in relation to the actual
conduct of the election being provided by the. Representation of the People Act, 1976,
and thus adequate remedy being available, the challenge to the election of the Members
of the National Assembly through this petition under the provisions of Article 199 of the
Constitution is clearly barred."

30. It may be observed that in the above paras. the case of Farzand Ali (ibid) has also
been discussed. Although it was also cited at the bar by the learned counsel for Rana
Imtiaz Ahmed Khan but there is no need to discuss it, in view of the observation made

Page No. 11 of 12
herein above i.e. in instant case there is no dispute in respect of election of a Member of
the House or Provincial Assembly.

31. Now it is to be seen that Javed Hashmi's case would not be applicable. Firstly; for the
reason that in instant case there is no dispute which falls within the provisions of Article
225 of the Constitution; secondly the controversy between the parties pertains to a pre-
election dispute; thirdly petitioner-Rana Muhammad Hayat Khan had been adjudged to
be defaulter in view of discussion made herein above and; fourthly in vim of the given
facts and circumstances of the case, there is no dispute between the parties which is
required to be proved or shall be proved before the Election Tribunal therefore in instant
proceedings relief can be given to petitioner-Rana Imtiaz Ahmed Khan. There could not
be second opinion that dispute relating to corrupt or illegal practices or illegal acts,
alleged to be have been committed etc. during the polling, cannot be adjudicated upon by
the High Court or by this Court in exercise of Constitutional Jurisdiction because these
questions require to be established on the basis of evidence and this Court would never
encourage the settlement of such dispute by invoking its Constitutional Jurisdiction,
except in those cases where there is undisputed facts and nothing is required to be proved,
therefore, we are of the opinion that all those disputed questions of facts, arising out of
pre-election or post-election disputes, should be determined by the Tribunal and if there is
no dispute of such like nature, the jurisdiction of the High Court can be invoked. In this
behalf reference may be made to Abdul Majeed Khan (ibid) and Ahad-Sharif (ibid).

32. No other point has been argued by the learned counsel for the parties.

33. Thus for the foregoing reasons Civil Petition No.2035-L of 2005 filed by Rana
Muhammad Hayat Khan is dismissed and Civil Petition No.2198-L of 2005 filed by Rana
Muhammad Imtiaz Khan is converted into appeal and allowed with no order as to costs.
Consequently, the Election Commission of Pakistan is directed to hold fresh elections for
the office of District Nazim, Kasur according to law.

S.A.K./M-113/S Order accordingly.

Page No. 12 of 12
2008 P L C 376

[National Industrial Relations Commission]

Before Raja Abdullah Khan, Member

MUHAMMAD IQBAL KHAN

Versus

Messrs PEARL CONTINENTAL HOTEL through General Manager

Cases Nos.4A(84)/24(83) of 2003, decided on 31st March, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---National Industrial Relations Commission (Procedure and


Functions) Regulations, 1973, Regl. 32(2)(c)---Unfair labour practice by the employers---
Petitioner, who claimed to be Vice-President of Employees Union in the employer Hotel
which was non-Collective Bargaining Agent Union, was appointed as a Houseman in
1978 in the House-keeping Department where he worked till 1995 for about 17 years---
Petitioner, thereafter was transferred as Laundryman due to exigency of service, where he
worked for about 8 years and from there he had been retransferred to House-keeping
Department as Houseman due to exigency of service in accordance with the terms and
conditions of his appointment letter---Such simple transfer, had been challenged by the
petitioner in his petition filed under S.49(4)(e) of Industrial Relations Ordinance, 2002
alleging that said transfer was due to unfair labour practice on the part of the employer on
account of lawful trade union activities of the petitioner who was Vice-President of the
Union which was pressing for the Referendum---Provisions of Ss.20(15) & 40(2) of
Industrial Relations Ordinance, 2002 had not been violated by the employer in any way
in ordering the transfer of petitioner from Laundry Department to House-keeping
Department which department was housed in the same building and it was adjacent to
Laundry Department---Even no term and conditions of petitioner had been changed---By
said transfer the trade union activities of petitioner were not affected in any way, hence
no permission of Registrar of Trade Unions was required for that transfer---Petition was
not maintainable at all before National Industrial Relations Commission because no
unfair labour practice had been proved by the petitioner against the employer---Even
otherwise there was no prayer in the petition regarding the setting aside of impugned
transfer order.

1987 PLC (Labour) 332; 1991 PLC 44; Appeal No.12(32) of 2001; Appeal No.12(8) of
2004; Appeal No.4A(148) of 2002-K; 1991 PLC (Labour) 722; 1992 PLC (Labour) 424
(SC 1028); 1992 SCMR 2166; 2005 PLC 219; 2003 PLC 52; 1999 PLC 229; 2001 PLC
103; Shahid Naz v. K.S.B. Appeal No.12(24) of 2001; Hoechst Marrion v. Abdullah
Appeal No.12(36) of 1999; Talat Mahmood v. WAPDA Appeal No.12(05) of 2005-L;
2007 PLC 224; Appeal No.12(05) of 2007-K; K.P.T. v. Jalal Shah 2007 PLC 666 ref.

Chaudhry Latif Saghar for Petitioner.

Faisal Mahmood Ghani for Respondent.

ORDER

RAJA ABDULLAH KHAN (MEMBER).--- This order will dispose of the above petition
which has been received by transfer from the Court of Mr. Ghulam Nauman Shaikh,
learned Member, Karachi on 22-1-2008.

2. The petitioner has filed this petition under section 49(4)(e) read with section 63(a)(d)
of the I.R.O., 2002 and Regulation 32(2)(c) of the NIRC (Procedure and Function)
Regulations, 1973 against the respondents with the following prayer:-

"That this Honourable Commission may be pleased to:-.

Page No. 1 of 4
(i) deal and determine the case of unfair labour practice against the respondent, its
officials, subordinates, agents and representatives in favour of petitioner and may also be
pleased to grant relief in favour of the petitioner under the law.

(ii) Restrain the respondents, its officials, subordinates, agents and representatives from
committing acts of unfair labour practice as threatened by restraining them from
dismissing, terminating, discharging, removing, transferring or any other adverse action
which would affect the terms and conditions of employment of the petitioner as well as
the conditions of work.

(iii) Any other relief which this Honourable Commission may deem fit and proper and
may pass order/orders in favour of the petitioner against the respondents."

3. The facts in brief giving rise to this petition are that the petitioner is an employee of the
respondent Hotel as Laundryman for more than 20 years and has unblemished record of
service at his credit. It is alleged that the petitioner is Vice-President of Pearl Continental
Hotel Employees Union, Karachi which is non-C.B.A. and contesting the referendum by
challenging the existing C.B.A. for determination of C.B.A. for which the referendum
proceedings before the RTU are in progress. It is alleged that many dates to this effect
have been fixed and many meetings held before the RTU but the Management of the
respondent deliberately is avoiding and delaying the process by not attending or
submitting the list as per directions of the RTU. Photostat copy of the change of office-
bearers and notices issued by the RTU are filed with the petition as Annex: A to All. It is
alleged that the Charter of Demands submitted by C.B.A. Union w.e.f. 1-1-2003 is
pending before the Area Conciliator and the meetings for settlement are being carried out
but the same have not yet been finalized and are pending for one reason or the other and
as such the industrial dispute as prescribed under the law is pending and the management
of the respondent is bound under the provisions of law not to change the terms and
conditions of workers. A copy of the conciliation notice issued by the Conciliator is/are
filed and marked as Annexures "B" to "B/2'. It is alleged that the petitioner is playing
active role in the trade union activities specifically with regard to the holding of
'referendum which is not liked by the Officers of the respondents-Management who off
and on call the petitioner with the direction to disassociate from the union and his trade
union activities with regard to referendum proceedings but he has not yielded to their
demand and as such he has been called on 6-8-2003 by Messrs Arif Jamal, Assistant H.R.
and Syed Atique Ahmed, H.R. Officer with the specific direction in their office that in
case the petitioner does not disassociate from the trade union activities and the
proceedings, he would bear dire consequences by initiation of disciplinary proceedings
against him on some concocted and digging grounds as 'well as by transferring him from
the department where the condition of work and terms and conditions of the employment
would badly be affected as a sort of punishment due to lawful trade union activities and
as such there is every apprehension for fulfilment of their threats unless this Honourable
Commission restrains them from passing any adverse order against the petitioner. It is
alleged that even otherwise the management of the respondent hotel is restrained under
section 20(15) of the I.R.O., 2002 besides pendency of the Charter of Demands and
section 40 of I.R.O., 2002 wherein the right of the petitioner is duly protected during the
pendency of the industrial dispute as well as pendency of application of referendum and
as such this Honourable Commission is competent under the law to deal/determine the
case of unfair labour practice by restraining the respondents from taking adverse action,
order which badly affect the condition of work and terms and conditions of employment
of the petitioner which would affect the image of the petitioner between the
members/voters of the union and as such, such action if not restrained would badly affect
the petitioner himself as well as the referendum proceedings which would culminate in
crushing trade union activities on the part of the respondent-Management. It is alleged
that the acts and actions of respondents do constitute acts of unfair labour practice under
section 63(1)(a) and (b) of the I.R.O., 2002. It is alleged that the respondents intend to
commit acts of unfair labour practice unless restrained, hence this petition within the
jurisdiction of this Honourable Commission with the prayer as mentioned above.

4. The respondents have filed written statement in which they have contended that the
petition is not maintainable in law as admittedly the applicant has not served any notice

Page No. 2 of 4
of grievance before invoking the jurisdiction of this Commission because proceedings
under section 49(4)(e) of the I.R.O., 2002 are to be dealt with within the manner laid
down under section 46 of I.R.O., 2002. They have denied all the allegations of unfair
labour practice levelled against them by the petitioner. They have also contended that the
petition is not maintainable under section 50(3)(a) of the I.R.O., 2002. They have
contended that the petitioner was appointed as a Houseman in 1978 in the House-keeping
Department where he worked as such till 1995 (about 17 years) and thereafter he was
transferred as Laundryman due to exigency of service where he worked for about 8 years
and now he has been retransferred to House-keeping Department as Houseman due to the
exigency of service in accordance with the terms and conditions of his appointment letter
dated 31-1-1978 which is simple transfer and the said transfer order has since been given
effect therefore, the petition is liable to be dismissed.

5. In order to prove their respective contentions, the parties have adduced oral as well as
documentary evidence. Petitioner has examined himself by filing affidavit dated 19-10-
2004 in support of his case and has produced documents attached with the affidavit while
the respondents have examined D.W. Maj. (Retd.) Aamar Gul son of Mast Gul Khan,
their H.R. Manager in support of their case, he too has produced documents in support of
his version. These witnesses of the parties were subjected to cross-examination.

6. I have heard the Advocates for the parties and perused the evidence brought on record
carefully I have also considered the written arguments filed by Advocates for the parties.
Chaudhry Latif Saghar, Advocate for the petitioner has contended that the impugned
order of transfer of the petitioner dated 5-8-2003 which was given effect on 18-9-2004
after the dismissal of stay application of petitioner by the learned Member, NIRC,
Karachi on 8-9-2004 from Laundry to Housekeeping Department is liable to be set aside
because it is passed due to unfair labour practice on the part of the respondent on account
of lawful trade union activities of the petitioner who is Vice-President of the Union which
is pressing for the Referendum and is in violation of section 20(15) of I.R.O., 2002 and
section 40(2) of I.R.O., 2002 as it is passed without the permission of RTU and this
transfer, order has changed the terms and conditions of the petitioner. In support of his
contention he has relied upon the authorities reported in 1987 PLC (Labour) 332, 1991
PLC 44, Unreported judgment dated 1-12-2004 in Appeal No.12(32) of 2001, Unreported
judgment in Appeal No.12(8) of 2004 dated 6-12-2005, unreported judgment of Single
Bench in Case No.4A(148) of 2002-K dated 17-1-2003 which has been upheld vide
judgment dated 6-12-2005 in Appeal No.12(8) of 2004, PLC 1991 (Labour) 722, PLC
1992 (Labour) 424 (SC 1028) (HC), 1992 SCMR 2166 and 2005 PLC 219. This
contention of the Advocate for the petitioner has been controverted by the Advocate for
the respondents. He has said that no unfair labour practice whatsoever has been
committed by the respondents and the petitioner has been transferred from Laundry
Department to Housekeeping Department by order dated 5-8-2003/18-9-2004 in a routine
manner in accordance with the terms and conditions of his appointment due to exigency
of service. He further contended that no violation of section 20(15) of I.R.O., 2002 and
section 40(2) of the I.R.O. has been committed by the respondents at all. He said that it is
a simple case of transfer and the said transfer order having been implemented the petition
is not maintainable and is liable to be dismissed. He urged that this petition has been filed
by the petitioner in order to harass the respondents. In support of his contentions he has
relied upon the authorities reported in 2003 PLC 52, 1999 PLC 229, 2001 PLC 103,
Appeal No.12(24) of 2001 Shahid Naz v. KSB, Appeal No.12(36) of 1999 Hoechst
Marrion v. Abdullah, Appeal No.12(05) of 2005-L Talat Mahmood v. WAPDA 2007 PLC
224 (Present Bench of the Commission), Appeal No.12(05) of 2007-K (K.P.T. v. Jalal
Shah) and 2007 PLC 666.

7. I have carefully considered the contentions of both the Advocates for the parties and
gone through the authorities relied upon by them. I am of the considered view that the
contentions of Chaudhry Latif Saghar Advocate for the petitioner are not tenable nor the
authorities relied upon by him support his view point at all while the contentions of
Advocate for the respondent are tenable and the authorities relied upon by him support
his view point. To my mind the provisions of sections 20(15) and 40(2) of the I.R.O.,
2002 have not been violated in any way by the respondents in ordering the transfer of
petitioner from Laundry Department to House-keeping Department which department is
housed in the same building rather it is adjacent to Laundry Department. Even no terms

Page No. 3 of 4
and conditions of petitioner have been changed. He has been transferred to his present
department where he was appointed in January, 1978 and where he worked till by 1995
and now he cannot agitate that his terms and conditions have been changed in any way by
this transfer. By this transfer the trade union activities .of petitioner are not affected in
any way hence no permission of RTU was required for this transfer it is admitted position
that the order has been effected and presently the petitioner is working in the House-
keeping Department since, 2004 where he has no complaint whatsoever against the
respondents as is clear from his evidence. As such the petition is not maintainable at all
before the NIRC because no unfair labour practice whatsoever has been proved by the
petitioner against the respondents before this Court. In addition there is no prayer in the
petition regarding the setting aside of the impugned transfer order. In the circumstances,
no relief can be granted to the petitioner when he has not asked for it. In the
circumstances, the petition has no merit and is dismissed.

H.B.T./31/NIRC Petition dismissed.

Page No. 4 of 4
2008 C L C 283

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD BAKHSH through L.Rs. and others----Petitioners

Versus

FARAZA----Respondent

Civil Revision No.1256 of 1988, heard on 5th November, 2007.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Transfer of Property Act (IV of 1882), S.118---Specific Relief Act (I of 1877),
Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff who claimed his
possession qua the suit land, instituted the suit for declaration to the effect that he was
owner in possession of suit land and that mutation of exchange in respect of suit land in
favour of defendant was illegal and ineffective qua the rights of the plaintiff with a prayer
of permanent injunction---Defendant claimed the ownership of suit land on the basis of
exchange and statement to that effect was recorded by the Revenue Officer---Validity---
Plaintiff had succeeded in proving that he was owner in possession of the suit land and
the impugned mutation of exchange was of no effect---Mere fact that mutation of
exchange was upheld in the hierarchy of Revenue authorities, was no ground to non-suit
the plaintiff---Suit was rightly decreed and appeal preferred against the said judgment and
decree was justifiably dismissed---No misreading or non-reading of evidence was pointed
out---No illegally or material irregularity was shown to have been committed by the court
below---Findings of the court below were unexceptionable.

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

----S. 2(2)-West Pakistan Land Revenue Act (XVII of 1967), S.39---Decree and
mutation---Mutation was no match to a decree of civil court---Mutation was merely for
fiscal purposes and was not a document of title---Mutation could not equate or compete
with decree---Decree was a final adjudication of the controversy---Decree would hold the
field, until it was set aside by the higher forum or was annulled in a petition under
S.12(2), C.P.C.

Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation


and others 2006 SCMR 619; Muhammad Ameen v. Sardar Ali PLD 2006 SC 318 and
Muhammad and 19 others v. Muhammad Hayat and 8 others 2006 CLC 907 ref.

Allah Wasaya Malik for Petitioners.

Abdul Wahid Chaudhry for Respondent.

Date of hearing: 5th November, 2007.

JUDGMENT

SYED HAMID ALI SHAH, J.--- Ibrahim son of Jeeba was owner of land measuring 137
Kanals and 16 Marlas, in village Gauharwala, Tehsil Minkera, District Bhakkar. This land
on the basis of the decree of the Court, dated 25-11-1979 (Exh.P.1.), mutated in favour of
Faraza/respondent vide Mutation No.129, dated 25-11-1979. Respondent claims, his
possession qua the suit-land, since its transfer through mutation. The petitioners claim,
the ownership of suit-land on the basis of exchange, and statement to that effect was
recorded by the Revenue Officer on 26-4-1979 and Rapat Roznamcha (Exh.D.1) was
recorded on 15-4-1979. The petitioner claims suit-land on the basis of exchange, effected
through mutation. Both petitioners and respondent have competing claim, qua the suit-
land which resulted into litigation, culminating into this revision petition.

Page No. 1 of 3
2. The respondent instituted the suit for declaration to the effect that the respondent is
owner in possession of the suit-land and Mutation of exchange No.129, dated 9-12-1979
is illegal and ineffective qua the rights of the plaintiff with a prayer of permanent
injunction selling injunction. The defendants contested the suit, filed written statement,
controverted the averments of the plaint and raised various preliminary objections.
Learned trial Court struck eight issues and recorded evidence of the parties, in response
thereto. Learned trial Court decreed the suit vide judgment and decree, dated 29-7-1984
and appeal against the decree met the same fate vide judgment and decree, dated 12-11-
1987. Ibrahim who was original owner of the property was not a party before the trial
Court. Learned Appellate Court summoned him and recorded his statement as C.W.1.
Instant revision was filed to challenge the concurrent findings of two Courts below. The
revision was allowed vide judgment of this Court, dated 8-11-2000. It was observed by
this Court that the possession of the suit-land vested with the petitioners. The judgment of
this Court passed at the back of the respondent was assailed by the respondent in a
petition for leave to Appeal No.1538 of 2001, before the Honourable Supreme Court of
Pakistan. The apex Court, vide order, dated 7-12-2005 remanded the. case to this Court
for fresh decision, after hearing the parties.

3. Learned counsel for the petitioner has submitted that learned Appellate Court, has
misinterpreted the statement of Ibrahim as C.W.1 who admitted the transaction of
exchange but explained that exchanged land was altogether different from the suit-land.
Learned counsel added that the statement of C.W.1, had no significance, moreso when
detail of other land had not been provided. This makes the statement of C. W.1 vague and
unclear. Further the statement is outside the pleadings of the parties and as such cannot be
read into evidence. Learned counsel in support of his contention has referred to the cases
Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation
and others 2006 SCMR 619 and Muhammad Ameen v. Sardar Ali PLD 2006 SC 318.
Learned counsel has submitted that mutation of exchange was challenged in higher forum
in the hierarchy of lie Revenue Department. Learned Courts below have ignored these
decisions while referring to this statement of respondent as P. W.3, learned counsel
submitted that the witness admitted that the decree was based on oral sale, the execution
whereof was never sought. He further stated that he made an application before C.O.,
which was decided in his favour. The witness in the same breath-stated that the
application was not decided in his favour. Learned counsel went on to argue that mutation
of exchange Exh.P.2 was recorded on 15-4-1979 while suit was filed on 2-6-1981.
Ibrahim had no authority to file consenting written statement as the ownership of suit
property had passed on to the petitioners by that time. Learned counsel then submitted
that the petitioners were not party to the suit, which was collusive and the same is not
judgment in rem, thus, does not in any manner affect the rights of the petitioners. Learned
counsel while referring to the case of Muhammad and 19 others v. Muhammad Hayat and
8 others 2006 CLC 907, has contended that a decree which determined entitlement of a
party would be legally operative whether the same reflected in the Revenue Record or
not.

4. As against this learned counsel for the respondent/plaintiff has contended that both the
Courts below have rightly decided the controversy and there is no misreading and non-
reading of evidence. It has also been argued that the concurrent findings of the Courts
below cannot be disturbed in the revisional jurisdiction of this Court.

5. It is significant to note that both the parties derive their title qua the suit-land from
Ibrahim. It has already been mentioned that the respondent/plaintiff based her claim on
decree, dated 25-11-1979, which was passed in a suit filed on 17-7-1979, where the
aforesaid Ibrahim (defendant) filed conceding written statement. Consequently, the suit
filed, by the respondent/plaintiff was decreed. As against this according to the petitioner
the aforesaid Ibrahim had appeared before the Revenue Officer on 26-4-1979 and
exchanged his land with the petitioner on 15-4-1979. The mutation of exchange was
entered on 26-4-1979, which was subsequently, sanctioned on 9-12-1979.

6. So the conflicting claims of the parties are based on decree of Civil Court and mutation
of the Revenue Department. It may be mentioned that a mutation has no match to a
decree of Civil Court. A decree had been defined in section 2(2), C.P.C. It reads as under:

Page No. 2 of 3
"'Decree' means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the right of the parties with regard to all or
any of the matters in controversy in the suit and may be either preliminary or final..."

Inversely a mutation is merely for fiscal purposes and is not a document of title. It would
thus, follow that a mutation cannot equate or compete a decree. It may be added that a
decree is a final adjudication of the controversy. It holds the field unless it is set aside by
the higher forum or is annulled in a petition under section 12(2), C.P.C. But the decree,
dated 25-11-1999 has remained unscathed and with the flux of time and it has attained
finality. As such the aforesaid decree passed earlier in time thus, sanctioning of mutation
of exchange outweighs dwarfs of the aforesaid mutation.

7. Notwithstanding the above the aforesaid Ibrahim while appearing before the lower
Appellate Court minded no words in admitting that he had first sold the suit-land to the
respondent and thereafter the petitioner had obtained his thumb-impression on a blank
paper. He has explained that the land which he had purportedly exchanged with the
petitioners is different from the suit-land. He also stated that the respondent is in
possession of the suit-land. Even according to the Revenue Record the respondent is in
possession of the suit-land. Mere fact that the mutation of exchange was upheld in the
hierarchy of Revenue Authorities, is no ground to non-suit the respondent/plaintiff.

8. In sum the respondent/plaintiff had succeeded in proving that he was owner in


possession of the suit-land and the impugned mutation of exchange was of no effect. As
such his suit was rightly decreed and the appeal preferred against the said judgment and
decree was justifiably dismissed. There is no misreading and non-reading of evidence. No
illegality or material irregularity is shown to have been committed by the learned Courts
below. Their findings are unexceptional.

9. For the foregoing, instant petition is without any substance or force and is dismissed
accordingly with no order as to costs.

H.B.T./M-588/L Revision dismissed.

Page No. 3 of 3
2008 C L C 1468

[Karachi]

Before Ghulam Dastagir A. Shahani, J

NAVEED RAZA----Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Cantonment


Lands and Building Department, Government of Pakistan, Islamabad and 3 others----
Respondents

Suit No.352 and C.M.A. No.1839 of 2008, decided on 26th April, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42, 55 & 39---Application
under O.XXXIX, Rr.1 & 2, C.P.C. in a suit for permanent injunction, declaration and
cancellation with prayer by plaintiff to restrain the defendants, as well as their
representatives and agents, not to demolish the existing structure raised on a specified
plot, nor act/implement the directions issued by the Cantonment Board for removal of
structure, in any way, till decision of the suit---Every case was to be decided on its own
merits, and plaintiff had to prove his own case and could not be benefited on the
weakness of the other side, if any---Three essentials/ingredients were to be considered for
grant of injunction and it was not necessary, that plaintiff must have a strong, good prima
facie case but an arguable case was sufficient---Plaintiff, in the present case, admittedly
had built the structure by spending huge amount, though same may be without approval
of building plan by the concerned authorities---Cantonment Board (defendants) had also
admitted the existing structure and construction raised by the plaintiff,' which was said to
have been made in the year 2004---Plaintiff was ready and willing to pay usual fees in
respect of regularization plus fine, if any---Copy of plan had also been submitted to the
Cantonment Board for approval---Plaintiff had alleged mala fide against the defendants
that construction of other surrounding buildings was subsequently regularized by the
defendants, and all such facts required framing of issues and evidence and the matter will
take sufficient time, and by virtue of time, entire situation might be changed and create a
fresh cause of action and the purpose of filing the present suit may become infructuous,
as clear directions had been issued for demolition of the structure within a prescribed
period---Local Commissioner had reported that property in question was situated on 10 x
15 feet wide street and in front of the said property there existed another building on the
right side of which was a road measuring 10 x 15 feet and there existed a residential
bungalow and the property in question was surrounded by a boundary wall etc. and
structure available on the site was old one hence adverse action was to be taken after
demolition of existing structure, before deciding genuineness of application, available on
record---Held, in circumstances, plaintiff was entitled to the relief as he had a good prima
facie case and it would be inconvenient for him, and he would suffer greatly in case of
refusal of injunction, against the defendants, as merits and demerits of the case were, to
be considered subsequently, therefore, for the time being, during pendency of the suit, in
order to maintain same position, it would be justified, to grant injunction application
accordingly.

Muhammad Nadeem Qureshi for Plaintiff.

Ashraf Ali Butt for Defendants Nos.2 to 4.

ORDER

GHULAM DASTAGIR A. SHAHANI, J.--- Through C.M.A. No.1839 of 2008 moved by


the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. the plaintiff has prayed to
restrain the defendants as well as to their representatives and agents, not to demolish the
existing structure raised on Plot No.C-51, Block B, Gulshan-e-Jamal, P.R.E.C.H.S.,

Page No. 1 of 3
Faisal Cantt, Karachi, nor act/implement the directions issued by the Cantonment
Executive Officer, Cantonment Board Faisal, Shahrah-e-Faisal, Karachi, under his letter
No.CBF-9/Notice/C-51/BLB/J dated March 4, 2008, for removal of structure, in any way,
till decision of the suit.

2. Brief facts of the suit are that, the plaintiff is an authorized dealer of Pak Suzuki Motor
Company Limited, so also the owner of Plot No.C-51, Block "B", Gulshan-e-Jamal,
P.R.E.C.H.S., Faisal Cantt., Karachi. The plaintiff, in order to provide 3S facilities to the
customers/buyers of the Suzuki Cars, proposed to establish a new showroom/shop on a
particular place situated behind the existing show-room of the plaintiff. Further case of
the plaintiff is that a building plan for the proposed workshop was also submitted by him
and completed the construction work as per building plan and inauguration ceremony of
said workshop was also taken place, and plaintiff had been using the same with effect
from March, 2004, but all of a sudden received a letter from Cantonment Board Faisal,
Karachi, bearing No.CBF-9/Notice/ C-51/BL-B/J dated March 4, 2008 for providing a
copy of approved building plan within a period of three days, in a clear terms that in case
of failure structure available at the site will be demolished through their officials. As
such, plaintiff filed present suit against defendants for declaration to the extent that such
directions issued by the Cantonment Board, Faisal, are illegal and unlawful and building
plan can be regularized on payment of usual regularization fees plus fine, if any.
However, on 5-3-2008 notices were ordered by this Court to be issued to the defendants.
On receipt of notices, written statement as well as counter affidavit was submitted by the
defendants in respect of injunction application C.M.A. No.1839 of 2008 stating therein
that, no building plan has been submitted by the plaintiff with the office of Cantonment
Board Faisal, though admitted that appeal under section 274 read with Schedule V of the
Cantonment Act, 1924 is pending for want of decision.

3. With consent of learned counsel for the respective parties, application for inspection
viz. C.M.A. No.1838 of 2008 was allowed on 3-4-2008 and Syed Sabit Ali Shah, Private
Secretary (Protocol) was appointed as a Local Commissioner to inspect the suit property
and report. Arguments were heard in respect of C.M.A. No.1839 of 2008 on 3-4-2008
and 4-4-2008 respectively and matter was fixed for announcement of the order on 8-4-
2008. As inspection report was awaited, matter was adjourned for same purpose.
However, site inspection report was received by the office on 11-4-2008 and nobody
objected/challenged the: same, therefore, presumption can be taken that, both the parties
accepted the same.

4. I have heard learned counsel for the plaintiff, as well as learned counsel for the
defendants Nos.2 to 4 and with their assistance have gone through the material available
on record. Learned counsel for the plaintiff repeated same facts and grounds as disclosed
by him in the memo. of Plaint and learned counsel for the defendants Nos. 2 to 4 repeated
the version as alleged in the written statement and counter affidavit respectively.

5. Learned counsel for defendants Nos.2 to 4 further urged that the structure raised by the
plaintiff is without approval of the Cantonment Board Faisal, as such illegal act cannot be
protected under any law, therefore, structure raised by the plaintiff is liable to be
demolished and removed. He requested for dismissal of injunction application C.M.A.
No.1839 of 2008, on the ground that plaintiff has no case, nor balance of convenience lies
in his favour, nor plaintiff will suffer any loss.

6. It is well settled principle of law that every case is to be decided on its own merit, and
plaintiff has to prove his own case and he cannot be benefited on the weakness of other
side, if any. So far grant and refusal of injunction application is concerned, there are three
essential ingredients, which are to be considered. So far injunction application is
concerned, it is not necessary that plaintiff must have a strong good prima facie case but
arguable case is sufficient. Admittedly, structure by spending huge' amount is constructed
by the plaintiff, though same may be without approval of building plan, for which reply
of relevant paragraphs particularly paragraphs Nos.12 to 16 of the Plaint are so relevant,
in which the Cantonment Board Faisal has not denied the existing structure and
construction raised by the plaintiff, which is said to have been made in the year 2004. Not
only this but plaintiff is also ready and willing to pay usual fees in respect of
regularization plus fine, if any. Admittedly, appeal is filed by the plaintiff and pending

Page No. 2 of 3
decision. Copy of miscellaneous application is submitted for grant of approved building
plan subject to a decision under particular rules and regulations, though application for
approval of building plan is denied/disputed, and genuineness of the documents require
sufficient time to be decided, but no action and non-reply of the Cantonment Board
Faisal, since such a long period, presumption can be taken that at least, plaintiff has
applied for approval of building plan and matter is pending decision, in any way that is a
right of the Board to approve or not, and to take necessary action if desires, if
construction plan is refused on merits. Furthermore, mala fide is alleged against the
defendants that construction of other surrounding buildings was subsequently regularized
by the defendants, and all such facts also require framing of issues and evidence, and
matter will take sufficient time, and by virtue of time, entire situation may be changed
and create a fresh cause of action and the purpose of filing of present suit may become
infructuous, as clear directions have been issued for demolition of the structure within a
particular period. Local Commissioner has reported that the property in question is
situated in Block 2, Gulshan-e-Jamal, P.R.E.C.H.S., Faisal Cantt., Karachi, on 10 x 15
feet wide street, and in front of the said property there exists another building known as
Macca Arcade on Plots Nos. FL-8,9,10 and 11, whereas on right side is a road measuring
10 x 15, there exists a residential bungalow on Plot No.C-50 and the property in question
is surrounded by a boundary wall viz. 10 x 12 feet high, and half of the property is
covered with concrete RCC constructed roof, and remaining is covered with asbestos
sheets supported by RCC Pillars from ground to top, whereas room has been constructed
under the roof having a separate door and some tools and machinery were lying therein,
and such building was fully electrified. All the equipments for denting, painting and other
ancillary work were available and 13 to 15 motor vehicles were available in the aforesaid
workshop. According to his opinion structure available on the site was old one, hence
adverse action is to be taken after demolition of existing structure, before deciding
genuineness of application, available on record.

7. In view of above facts and circumstances, prima facie, plaintiff is entitled to the relief,
as he has a good prima facie case and it will be inconvenient for him, and he will suffer at
large in case of refusal of injunction, against the defendants, as merits and de-merits of
the case are to be considered subsequently, therefore, for time 'being, during pendency of
the suit, in order to maintain same position, it will be justified, to grant C.M.A. No.1839
of 2008, which is granted accordingly.

With above observations, CMANo.1839/2008 is disposed of.

M.B.A./N-30/K Order Accordingly.

Page No. 3 of 3
2008 C L C 946

[Karachi]

Before Khalid Ali Z. Qazi, J

AHMED JAMIL ANSARI----Plaintiff

Versus

Messrs AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.)


LIMITED----Defendant

Suit No.920 of 2007' and C.M.A. No.4 of 2008, decided on 8th April, 2008.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Plaintiff sought amendment in title


of suit, replacing a prayer clause and substituting certain words---Effect---Power to grant
amendment, being procedural was to he used for the purpose of dispensation of complete
justice---Court should not hesitate in allowing amendment to cure formal defects, which
were bona fide and had occurred due to mistake of fact or misapprehension---Proposed
amendment such as amendment or addition in title of suit as "suit for damages" deleting
one prayer clause, addition of another clause, substituting word "was" instead of "is" and
substituting two paragraphs of plaint without enhancing in cause of action did not involve
any drastic change in suit to seek relief---While deciding case, it was the duty of Court to
take into consideration facts and circumstances of case even subsequent event which
might have come into existence after institution of plaint---To do substantial justice an
amendment was necessary for the purpose of determining real matter in controversy---
High Court permitted plaintiff to file amended memo of plaint and defendant was at
liberty to file amended written statement---Application was allowed accordingly.

PLD 1985 SC 345 and AIR (34) 1947 PC 173 rel.

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

----O. VI, R. 17---Amendment of plaint---Stage---Amendment of plaint can he allowed at


any stage, even by first and second Appellate Court or in revision or even in appeal
before Supreme Court.

2003 SCMR 379 rel.

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

----O. VI, R. 17---Amendment of plaint---Principles---Amendment of plaint should be


liberally allowed where it is asked for before filing of written statement.

1974 SCMR 181 rel.

Kamal Azfar and Sardar Zulqarnain for Plaintiff.

Munib Akhter for Defendants.

ORDER

KHALID ALI Z. QAZI, J.--- C.M.A. No.4 of 2008. This is an application under Order
VI, rule 17 read with Order XXIII, rule 1(1), C.P.C. and section 151, C.P.C. filed by the
plaintiff wherein it is stated plaintiff be allowed to effect the following amendments in the
plaint and/or abandon Prayer "A" which reads as under:

(a) the existing title of the suit/plaint may kindly be allowed to be amended so as to read
as follows:--

Page No. 1 of 4
"suit for damages"

(b) in Line No.3, para.1 of the plaint the word "is" may kindly be allowed to be
substituted with the word `was";

(c) in the Line No.2 para.2 of the plaint the word "is" may kindly be allowed to be
substituted with the word "was";

(d) in the second last line of para.7 the word "is" may kindly be allowed to be substituted
with the word "was";

(e) the existing para.12 of the plaint may kindly be allowed to be substituted by the
following:--

"12. Subsequent to the illegal/unauthorized sale and transfer of the subject shares by the
defendant the share value declined. However, in this suit the plaintiff is claiming for the
deprivation of suit the plaintiff is claiming for the deprivation of his right to liquidate the
subject shares at rate prevalent at the time of their illegal sale/transfer by the defendant.
Ali recently the plaintiff has illegally been removed from Chairmanship of C.T.T.L. by
some vested quarters. Such fact is being submitted so as to state all the subsequent
events."

(f) the existing para.13 of the plaint may kindly be allowed to be substituted by the
following:--

"13. The plaintiff claims for damages and monetary compensation as spelt in this suit."

(g) the plaintiff may further kindly be allowed to delete prayer "A" and further prayer "B"
may be allowed to be read as follows:

"A. Damages to the tune of Rs.85,36,343,725 with interest at the rate of 15% on the
amount so claimed from the date of accrual till the date of payment."

(h) the prayer clauses "B" and "C" may be allowed to be renumbered as "A and "B".

Brief facts of the case requisite for disposal of this application is that the defendant at
material times illegally, unauthorizedly and malafidely sold/transferred 11.5 million
shares of the plaintiff causing him grave loss and damage. It is the case of the plaintiff
that the defendant illegally and unlawfully sold/transferred 6.5 million and 5 million
shares on dates when the price of such shares was Rs.80 and Rs.70 per share,
respectively. Also the highest value of the shares reached Rs.103.70 per share. It is further
stated that while subsequently, the value of the shares declined but in the fitness of things
the plaintiff is entitled to compensation and damages, which are to be worked out by
taking the value of the shares at Rs.80 and Rs.70 per share at which they were sold by the
defendant. It is further contended that in view of the subsequent events which include the
decline in the value of the share the first prayer of the plaint along with its corresponding
parts in the plaint where return of the share have been requested is no longer feasible and
has become redundant. It may be noted that the C.T.T.L. has ceased commercial
operations after the removal of plaintiff as Chairman. Even otherwise the cause of action
has arisen at the time when the shares were illegally transferred or sold out by the
defendant and the damages caused to the plaintiff in view of the malfeasance of the
defendant.

2. It is further urged that unauthorized and illegal sale of 11.5 million shares of the
C.T.T.L. held by the defendant, the plaintiff has lost control of C.T.T.L. It is further
contended that since the institution of the suit, the plaintiff was removed from
Chairmanship of the C.T.T.L. by the Directors representing the majority of share-holders
having no shares in the C.T.T.L. on account of the unlawful and unauthorized and illegal
sale of shares by the defendant, the plaintiff has no prospect of being elected to any
position or role in the management or control of the Company. In the circumstances, the
plaintiff abandons the prayer for declaration and injunction as sought in prayer "A" of the

Page No. 2 of 4
plaint. It is stated that amendments sought do not change the nature and character of the
suit. In the suit the plaintiff has complained of the illegal and mala fide transfer/sale of
the shares by the defendant and the damage such action has caused to the said plaintiff.
The essence of the suit will remain the same even if the amendment is allowed i.e. the
illegal sale/transfer of shares effected by the defendant having caused immense loss and
damage to the plaintiff. Learned counsel further contended that no prejudice shall be
caused to the defendant if the proposed amendments are allowed, whereas grave
prejudice shall be caused to the plaintiff if the motion is declined.

3. In reply to the arguments of Mr. Kamal Azfar learned counsel for the plaintiff Mr.
Munib Akhter learned counsel for the defendant advanced his arguments.

4. Mr. Munib Akhter learned counsel for the defendant contended that the purported
narration of facts given by the plaintiff is wholly incorrect. Learned counsel denied that
any loss or damage whatsoever was caused to the plaintiff. Mr. Munib Akhter learned
counsel did not dispute the amendment in respect of word "is" and "was". Learned
counsel stated that plaintiff is not entitled to any relief whatsoever. The valuation
purported to be put by the plaintiff on the shares is incorrect and denied. Learned counsel
contended that plaintiff is not entitled to any relief against the defendant, and denied that
the relief referred to in the para. under reply has become redundant or infeasible, whether
as allegedly or otherwise. Learned counsel stated that plaintiff may be put to the strict
proof of his claim that he has been "removed" as Chairman of C.T.T.L. or that the said
company has ceased commercial operations. Learned counsel stated that no cause has
accrued to the plaintiff against the defendant. Learned counsel denied that any illegal or
unauthorized or unlawful act was committed by the defendant if at all the plaintiff has
been "removed" from the position of Chairman of C.T.T.L., it is obvious that the
plaintiff's own acts of misfeasance and malfeasance led to that situation arising. The
plaintiff is attempting to burden the defendant with his own wrongdoing.

5. Mr. Munib Akhter learned counsel stated that plaintiff is not entitled to make the
amendments sought in the plaint as per clauses (d), (e), (g) and (h) of the application.

6. In right of rebuttal Mr. Kamal Azfar learned counsel for the plaintiff contended that
how the facts as narrated by the plaintiff are incorrect has not been specified by the
defendant, who is put to strict proof. It is equally denied that no loss or damage was
caused to the plaintiff. Once again the defendant is put to strict proof. Learned counsel
stated that plaintiff is entitled to relief. The valuation of the shares given by the plaintiff is
absolutely in order. How the same may be incorrect has not been specified by the
defendant. On one hand the defendant has contended that the referred relief has not
become redundant or infeasible, while on the other hand the defendant has stated that the
plaintiff is not entitled to any relief against defendant. The stance is contradictory and
inconsistent. It is further stated that truth of the matter is that in view of the changed
circumstances the relief earlier claimed has become redundant. It is stated that plaintiff
was removed as the Chairman of C.T.T.L. and that the said company, has ceased
commercial operations. Furthermore, it is stated that the cause of action as stated in the
application/suit has accrued to the plaintiff against the defendant. Learned counsel
reiterated the corresponding part of the application. Learned counsel stated that
corresponding contents of the application and the affidavit are reiterated the removal of
the plaintiff. As Chairman of C.T.T.L. is substantiated by Resolution, dated 11-11-2007
all the adverse allegations and insinuation are denied as incorrect. Mr. Kamal Azfar
learned counsel relied upon PLD 1985 SC 345 and AIR (34) 1947 PC 173.

7. Order VI, rule 17, C.P.C. provides that the Court may at any stage of the proceeding
allow either party to amend his pleading in such a manner and on such terms as may be
just or all such amendment shall be made as may be necessary for the purpose of
determining the real question and controversy between the parties. The power to grant
amendment, being procedural is to be used for the purpose of dispensation of complete
justice. The Court may not hesitate in allowing the amendment to cure the formal defects,
which is bona fide and has been occurred due to mistake of fact or misapprehension.
Reliance may be placed on PLD 1985 SC 345. The proposed amendment such as
Amendment or Addition in the title of suit as "suit for damages" abandoning deleting
prayer clause "A" addition of clause "B" substituting the word "was" instead of "is",

Page No. 3 of 4
substituting paras.12 and 13 of the plaint without changing in the cause of action's detail
does not involve any drastic change in the suit to seek the relief. It is the duty of Court
while deciding the case to take into consideration the facts as circumstances of the case
even the subsequent events which might have come into existence after the institution of
the suit.

8. It is well-settled that the amendment in plaint can be allowed at any stage, even by the
first and second Appellate Court or in revision or even in appeal before the Supreme
Court. Reliance may be placed on 2003 SCMR 379.

9. It is also well-settled principle of law that it should be liberally allowed where it is


asked for before the written statement has been filed. Reliance may be placed on 1974
SCMR 181. In the instant case plaint of suit was presented on 22-7-2007 the application
under Order XIV, rule 17 read with Order XXIII, rule 1(1), C.P.C. under section 151,
C.P.C. has been filed on 1-1-2008 whereas written statement on behalf of defendant was
filed on 14-1-2008. In my considered opinion to do substantial justice amendment is
necessary for the purpose of determining the real matter in controversy, therefore,
application is allowed. Plaintiff is permitted to file the Amended Memo. of plaint within
15 days. The defendant is at liberty to file the amended written statement as well within
30 days from the date of receipt of the copy of amended memo. of plaint of the suit.

M.H./A-25/K Application allowed.

Page No. 4 of 4
2007 P L C 133

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

UNITED BANK EMPLOYEES FEDERATION PAK1CTAN through General Secretary

Versus

Messrs UNITED BANK LIMITED through President and 2 others

Cases Nos.4A(1) and 24(1) of 2006-K, decided on 13th March, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 20(13)(b)---National Industrial Relations Commission (Procedure and


Functions) Regulations, 1973, Regln. 32(2)(C)---Unfair labour practice by employer---
Application for---Interim relief---petitioner which was registered as Industry-wise
Federation, had alleged that respondent Bank filed several cases against petitioner and its
office-bearers so as to restrain office-bearers and members of petitioner Federation from
their Trade Union activities; that respondents had stopped the break time for lunch and
prayer; medical facilities for parents, leave encashment and changed the rate of annual
increment of the workers and thereby affected the existing working conditions of the
workers---Petitioner along with the petition had also filed application for interim relief
under Regln. 32(2)(c) National Industrial Relations Commission (Procedure and
Functions) Regulations, 1973---General allegations had been levelled by petitioner in the
petition against respondents and no specific instance had been brought on record which
required evidence to substantiate allegations levelled against respondents---No document
had been produced by petitioner as to what medical facilities and other working
conditions of the workers had been stopped or curtailed by the respondents---No charge-
sheet or show-cause notice had been issued by respondents against any office-bearer or
member of the petitioner Federation---Apprehension of petitioner without any supporting
circumstances, would not make out a prima facie case for grant of interim relief as prayed
for by petitioner---Even otherwise proviso of clause (e) of Subsection (4) of S.49 of
Industrial Relations Ordinance, 2002 barred the grant of interim relief when there was no
industrial dispute pending---Application under Regln. 32(2)(c) of National Industrial
Relations Ordinance (Procedure and Functions) Regulations, 1973 filed by petitioner
Federation was dismissed in circumstances.

PLD 1979 Kar. 473; 1992 SCMR 36; 2000 SCMR 1172 and 2005 PLC 327 rel.

M.A.K. Azmati for Petitioner.

Faisal Mahmood Ghani for Respondents.

ORDER

GHULAM NAUMAN SHAIKH (MEMBER).---This is petition under section 49(4)(e) of


the I.R.O., 2002 along with application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 supported by affidavit of Syed Qamar Abbas filed by the petitioner
federation through its General Secretary against the respondents.

2. The facts of the case as stated in the petition are that the petitioner is registered as
industrywise Federation with RITU, National Industrial Relations Commission,
Islamabad and represents all the workers of the respondents Bank throughout Pakistan.
The petitioner has resolved the disputes with the management of respondents through
bilateral negotiations from time to time but now the respondents are avoiding to resolve
the dispute of the workers malafidely. The respondents have filed several cases against
the petitioner federation and its office-bearers so as to restrain the office-bearers and
members of the petitioner federation from their trade union activities. 4t is alleged that
now the respondents have stopped the break time for lunch and prayer, medical facilities

Page No. 1 of 3
for parents, leave encashment and changed the rate of annual increment of the workers
and thereby affected the existing working conditions of the workers. It is alleged that the
respondents also have threatened the workers not to pursue for their previous existing
facilities, otherwise they will be transferred, demoted, suspended, terminated or
dismissed from the employment. The respondents, therefore, have deprived the workers
from their available facilities, so as to crush their trade union activities, which are
calculated to the acts of the unfair labour practice. It is, therefore, apprehended that the
respondents will dismiss, transfer, suspend, demote or terminate the office-bearers and
members of the petitioner federation at Karachi, Hyderabad, Lahore, Gujranwala,
Faisalabad and Islamabad. It is prayed to restrain the respondents and persons connected
with them from transferring, suspending, demoting, terminating or dismissing the
members and office-bearers of the Federation from the employment and not to harass or
pressurize or victimize them in their employment.

3. The respondents filed reply statement with preliminary legal objections regarding
maintainability as well as have challenged the jurisdiction of National Industrial
Relations Commission. It is alleged that the petitioner federation is an illegally
constituted body and a complaint for cancellation of its registration has been filed before
the Bench of NIRC exercising the powers of Labour Court. The petitioner is not certified
as Collective Bargaining Agent, as such it cannot espouse the cause of individual
workers. It is submitted that on same cause of action seeking a general relief a petition
was filed as Case No.4A(152)/05-L before the Bench of Commission at Lahore, wherein
initially the stay was granted. Then stay application was dismissed on 5-10-2005 and
main petition was also then dismissed on 7-1-2006 for want of evidence. The present
petition is, therefore, hit by res judicata. On merits the allegations contained in the
petition regarding mala fides and threats are denied. The respondents have submitted that
they have legally initiated the proceedings against the office-bearers before the National
Industrial Relations Commission so as to prevent commission of: unfair labour practice
by them. It is submitted that no right guaranteed and secured to the workers, trade union
or federation has been infringed so as to call for its enforcement. It is alleged that there
are general and bald allegations and no specific instance of victimization constituting
unfair labour practice, has been levelled in the petition, as such the petition is not
maintainable. It is submitted that transfer, initiation of disciplinary proceedings and
taking any action is contractual and legal right of the respondents and cannot be
restrained under the garb of allegations of unfair labour practice.

4. Syed Qamar Abbas, General Secretary of the petitioner federation has filed affidavit-
in-rejoinder.

5. I have heard arguments of Mr. M.A.K. Azmati, learned Advocate for the petitioner
federation and Mr. Faisal Mahmood Ghani, Advocate for the respondents.

6. Mr. M.A.K. Azmati, learned Advocate for the petitioner has contended that the
petitioner is registered as industrywise federation with National Industrial Relations
Commission. The respondents have filed several cases against the office-bearers of
petitioner federation and in a case filed by the respondents as Case No.4A(25)/2004-K,
stay has been granted against the petitioner. It is submitted that under the garb of interim
prohibitory order, the respondents are threatening and harassing the office-bearers and
arbitrarily stopped break time for the lunch and prayer, medical facilities for parents, so
also leave encashment and have changed other working conditions of the workers without
issuing any notice. Apprehending commission of acts of unfair labour practice by the
respondents, this petition has been filed. It is submitted that the respondents have
disputed the status of the petitioner federation to represent the workers, which can he
determined after the evidence is recorded. It is submitted that although the complaint has
been filed by the Registrar industrywise Trade Unions before the Bench of NIRC
exercising the powers of labour Court for cancellation of registration of petitioner
federation, but no order of its cancellation has been passed by the labour Court, therefore,
the petitioner can continue its functions.

7. Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has contended that
petitioner federation is not CBA, as such it cannot espouse the cause of individual
workers. In support of his contention he has placed his reliance on order of Member of

Page No. 2 of 3
NIRC in the case of United Bank Employees Federation through Provincial Secretary and
15 others v. President, United Bank Limited and 4 others reported in 2004 TD (Labour)
239, wherein it is observed that a trade union unless it is CBA cannot file grievance
petition in respect of individual grievance of a worker or even represent one or more
workers in a joint petition. Reliance also is placed on PLD 1979 Karachi 473 and 1992
SCMR 36. It is contended that there is no industrial dispute pending, as such also interim
relief cannot be granted, since it is barred under the proviso of clause (e) of subsection (4)
of section 49 of the I.R.O., 2002. In support of this contention of Mr. Faisal Mahmood
Ghani, learned Advocate for the respondents has referred to order, dated 29-8-2005
passed by this Bench of Commission in case bearing No.4A(32)/2005-K./24(41)/ 2005-
K. filed by Muhammad Nasir and others against Messrs Helix Pharma (Pvt.) Ltd. and
upheld by Full Bench of NIRC. He has contended that in pursuance of the order passed
by learned RITU a complaint has been filed before a Bench of Commission exercising
the power of Labour Court for cancellation of the registration of petitioner federation. It
is submitted that with same cause of action and same prayer a petition was filed by the
petitioner federation before the Bench of NIRC at Lahore bearing No. 4A(152)/2005-K.
(U.B.L. Employees Federation through its Chairman Muhammad Shabbir Chaudhry v.
U.B.L. through its President), wherein initially stay was granted, but the stay application
then was rejected and even main petition, was dismissed for want of evidence. No appeal
has been filed against the said order passed by the Member, NIRC, Lahore Bench, as
such it has attained finality. The petition is hit by res judicata. In support of his contention
he has placed his reliance on 2000 SCMR 1172. It is submitted that transfer and taking
any disciplinary proceedings against the employee is a statutory right of employer, which
cannot be taken away by making general allegations of unfair labour practice. It is
submitted that the allegations are vague, general and bald and do not make out a case of
unfair labour practice. In support of his contention he has relied upon order of this Bench
of Commission, dated 7-4-2001 in case No.4A(25)/2001-K. Attaullah son of Abdul Razak
and others v. Messrs Continental Biscuits Limited through its
Secretary/Occupier/Manager and others 2005 PLC 327.

8. I have considered arguments advanced by both the learned Advocates for the parties
and gone through the petition, application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973, supporting affidavit, comments and counter affidavit filed by the
respondents, affidavit-in-rejoinder as well as other documents filed by the parties.

9. The petitioner is registered as industrywise federation with National Industrial


Relations Commission. Last change of the office-bearers approved by the RITU vide
order, dated 19-2-2004 has been filed as Annexure "P.1" with the petition. However so far
no document has been tiled by the petitioner federation that it has status of CBA which
under clause (b) of subsection (13) of section 20 of the I.R.O., 2002 can represent all or
any of the workman in any proceedings. So far general allegations have been levelled in
the petition against the respondents and no specific instance has been brought on record,
as such it would require evidence of the petitioner federation to substantiate the allegation
levelled by it against the respondents. Except the allegation in the petition no document
has been produced by the petitioner as to what medical facilities and other working
conditions of the workers have been stopped or curtailed by the respondents. Admittedly
no charge-sheet or show-cause notice so far has been issued by the respondents against
any office-bearer or member of the petitioner federation and their apprehension without
any supporting circumstances, therefore, would not make out a prima facie case for grant
of interim relief as prayed by the petitioner federation, which is also of general nature,
thereby seeking protection to all the workers regarding their transfer, dismissal or
termination.

10. Even otherwise proviso of clause (e) of subsection (4) of section 49 of the I.R.O.,
2002 bars the grant of interim relief when there is no industrial dispute pending.
Accordingly the application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973
filed by the petitioner federation is dismissed. To come up on 31-3-2006 for filing
affidavit-in-evidence by the petitioner.

Announced in open Court.

H.B.T./4/NIRC Application dismissed.

Page No. 3 of 3
2009 M L D 274

[Karachi]

Before Munib Ahmad Khan, J

NASIR BHOLOO---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator and 3 others---


Defendants

Suit No. 1641 of 2000, decided on 19th October, 2007.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Sindh Public Property (Removal of Encroachment) Act (V of 1975),


S.3---Contempt of Court Act (LXIV of 1976), S.3---Suit for declaration, injunction and
damages---Application for contempt of court---Plaintiff claimed plot in question on the
basis of gift from his mother and that plot was shown as amenity plot---During pendency
of suit for declaration, injunction and damages, plaintiff who alleged that he had been
dispossessed despite restraining order was passed against authorities not to disturb the
possession of the plaintiff, had filed application for contempt of court---On statement of
authorities, notice issued under S.3 of Sindh Public Property (Removal of Encroachment)
Act, 1975 for removal of structure had been withdrawn by the authorities stating that suit
could be disposed of in terms of said statement---Suit was filed by the plaintiff for
declaration, injunction and damages and not for possession and prayer had been made
accordingly, but thereafter no amendment was requested in the plaint or its prayer
notwithstanding the fact that the plaintiff was allegedly dispossessed which situation
remained for years---Plaintiff had consented to the disposal of the entire suit without any
reservation or exceptions, which situation impliedly had shown that pending applications
were also merged in the order accordingly to which suit stood disposed of in view of
statement of authorities and thereafter there remained no grievance of the plaintiff---
Plaintiff also gave up his claim for damages and was satisfied with the statement of
authorities---Statement itself stated that plot in question was an amenity plot and nothing
had been promised respecting title of the plaintiff or restoration of possession to the
plaintiff---Since entire suit was disposed of without any reservation in respect to the
possession or contempt application said application could not be re-agitated---Office had
rightly treated said application as disposed of as the plaintiff himself did not take any
steps to make any application for rectification or correction of the order.

NIR 2000 Civil 333 and 1987-CLC 393 ref.

Muhammad Aziz Malik for Plaintiff.

Asim Mansoor for Defendants.

ORDER

C.M.A. No.4368 of 2008.

MUNIB AHMAD KHAN, J.---Through this C.M.A., the plaintiff has sought action under
the Contempt of Court Law, against the contemners, named in the application, three of
them are officials of erstwhile KMC. To this application, counter affidavit has been tiled
by one of the alleged contemners, through which entire factual position, as alleged in the
application, has been disputed. Anyhow, before taking contempt application, background
of the case is necessary.

The suit was filed for declaration, injunction and damages against the official
respondents, with the prayer that it may be disclosed that the property bearing plot
No.ST-2, Sub-Block E, Block III, Nazimabad, Karachi, belongs to plaintiff and notice,

Page No. 1 of 3
dated 25-1-2000, issued under section 3 of the Sindh Public Property (Removal and
Encroachment) Act, 1975 is not a valid action. Besides damages, injunction has also been
prayed.

As per documents, annexed with the Plaint, the plaintiff is claiming the plot on the basis
of gift from his mother, whose title particular has been shown in annexure, available at
page 49 of the suit, which is Form 4 of KDA. In the said Form the nature of the plot has
been shown as amenity plot. By another annexure C at page 51, the KDA has mutated the
said amenity plot to the plaintiff from Rashida Begum. During the case proceedings, the
plaintiff alleged that he has been dispossessed and since restraining order was passed
against the defendants, not to disturb the possession of the plaintiff, therefore, the instant
application was filed on 27-6-2000 under section' 3 of the Contempt of the Court Act.
The matter remained pending and on 10-3-2004 a statement was filed by KMC/CDGK of
which relevant paragraph is reproduced:--

"That the plot bearing No.ST-6 comes under the Administrative control' of the then KDA
and then KDA after approval of the competent authority original part plan bearing No.AD
(PC)-. 3/2001, dated 27-7-2001 was showing the amendment and lay out plan of plot
No.ST-6 situated at Block E, Nazimabad, Karachi from Park to Open space/Darul Sehat
(Amenity) plot was originally allotted to Messrs Bhollo and Hameeda Brothers. Copy of
letter, dated 31-7-2001 order and site-plan approved by the Defunct KDA has also been
produced and annexed as Flags "A", "B" and "C", thereafter they have filed suit and the
then KMC has issued notice that plot in question is Park plot, KDA has allotted the same
to the plaintiff. However, competent authority has authorized the undersigned to make the
statement before the Court that notice issued by the then KMC may be treated as
withdrawn and case may be disposed of in view of the above statement."

The said statement was taken up on 15-8-2005 and the suit was disposed of in the
following way:--

"15-8-2005. 1 to 4:---On behalf of CDGK a statement has been filed to the effect that
notice issued by the CDGK has been withdrawn which notice has been impugned by the
plaintiff in suit. Mr. Bashir stated there in view of the statement that notice, dated 25-1-
2000 bearing No. DDL/C/XI/1111/01 issued under section 3 of Sindh Public Property
(Removal of Encroachment) Act 1975 has been withdrawn. Mr. Bashir stated that entire
suit may be disposed of in terms of the statement. Accordingly, the suit stands disposed of
in view of the statement filed on behalf of CDGK. So far the damages are concerned, the
plaintiff does not process the same."

Learned counsel for plaintiff submits that since the application for contempt was pending
and since despite the order, dated 25-8-2005, possession has not been given to the
plaintiff, therefore, contemners may be punished.

On the other hand, learned counsel for defendant submits that plaintiff has no right or title
to the said amenity plot as it was never utilized for amenity purpose in the past fifty years
and the said amenity plot could not be inherited legally, therefore, its mutation in the
name of Rashida Begum, predecessor of the plaintiff, was wrong. Further the said
amenity plot could not be gifted by Rashida Begum to the plaintiff. He further submits
that keeping in view that situation, the plaintiff consented for the order, dated 15-8-2005
whereby entire suit was disposed of in terms of the statement, filed by defendant without
any reservation in respect to pending applications, which was also dismissed as these
were fixed from serial Nos. 1 to 4.

After hearing the learned counsel, it appears that at the moment, the Court has to see as to
whether C.M.A. No. 4368 of 2006 can be taken up for further order for it has been
merged in the order, dated 15-8-2005. Leaving apart the contention of defendant's
Advocate that amenity plot was wrongly recorded as inherited property and thereafter
mutated and gifted illegally, it is being observed that the suit was filed for declaration,
injunction and damages and not for possession and prayer has been made accordingly but
thereafter no amendment was requested in the Plaint or its prayer, notwithstanding the
fact that the plaintiff was allegedly dispossessed, which situation remained for years and
on 15-8-2005 the plaintiff consented to the disposal of the entire suit without any

Page No. 2 of 3
reservation or exceptions, which situation impliedly shows that pending applications
were also merged in the order, dated 15-8-2005 and thereafter there remains no grievance
of the plaintiff. The said order, as appears, was passed on the items listed as serial Nos. 1
to 4 which include the contempt application i.e. C.M.A. No.4368 of 2000 on serial No.2,
hence same was also disposed of. In the said order, the plaintiff also gave up his claim for
damages and he was satisfied with the statement filed by respondent.

In the circumstances, the contents of the statement are also to be looked into. Along with
the said statement, other letters in respect to the plot have also been annexed, showing
thereby that nature of plot has been changed. The statement itself states that the plot was
an'' amenity plot and nothing has been promised in respect to the title of the plaintiff or
restoration of dispossession to the plaintiff. Along with the said letter, a letter, dated 31-7-
2001 has also been annexed, which refers one Resolution of KDA Governing Body, dated
23-6-1973, whereby the change in the nature of the plot has been made.

In all these circumstances, and keeping in view that entire suit was disposed of without
any reservation in respect to the possession or contempt application, the instant contempt
application cannot be re-agitated. It has also been noticed that earlier application of the
plaintiff under section 144, C.P.C. for restoration of possession was dismissed by this
Court's order, dated 4-5-2006. The contention of the learned counsel for plaintiff and his
reliance i.e. NIR 2000 Civil 333 and 1987 CLC 393 cannot be of any help in peculiar
circumstances of the case. The order, dated 15-8-2005 has apparently washed away all
the miscellaneous applications which were listed on that date including contempt
application. The office has rightly treated this application as disposed of, as the plaintiff
himself did not take any efforts to make any application for rectification or correction of
the order, dated 15-8-2005 but moved' another application bearing C.M.A. No. 1569 of
2006 under section 144 for restoration and after about a year the matter was re-agitated,
when it was observed vide order, dated 4-5-2006 that C.M.A. No. 4368 of 2000 is still
pending, to which an explanation from the office was sought which was submitted on 8-
5-2006, which is similar, as dilated above by me.

In the circumstances, this application has no force and is dismissed.

H.B.T./N-31/K Application dismissed.

Page No. 3 of 3
2009 C L C 433

[Karachi]

Before Nadeem Azhar Siddiqi, J

RAHAT KHAN alias ZAFRI----Plaintiff

Versus

Captain (R) TAHIR NAVEED and 6 others----Defendants

C.M.As. Nos.8159 of 2008, 4447 of 2005 and 9960 of 2007 in Suit No.713 of 2005,
decided on 11th November, 2008.

(a) Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration of
title to suit-land---Application for amendment of plaint to add therein prayer of
possession---Validity---Amendment could be allowed to avoid multiplicity of
proceedings and determine real matter in controversy---Such prayer being a
consequential relief to such declaration would not change nature and complexion of suit
and cause of action---Application was accepted in circumstances.

(b) Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for
declaration and possession---Illegal dispossession of plaintiff from State land who alleged
himself to be sub-lessee under original lessee for un-expired period of lease---Temporary
injunction to restrain authority from creating third party interest in suit-land till expiry of
lease period, application for---Validity---Authority had not initiated action for
cancellation of original lease on ground of violation of its terms and conditions---Plaintiff
had right to claim possession of suit-land on basis of documents annexed with plaint---If
suit-land was further encumbered or alienated, then same would create problems in
executing decree to be passed in suit---Corpus of litigation would be preserved during
pendency of suit---Plaintiff had made out a prima facie case and would suffer irreparable
loss in case of refusal of injunction prayed for---Application was accepted in
circumstances.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Essential conditions---


Plaintiff had to make out a prima facie case and to show that in case of refusal of
injunction, he would suffer irreparable loss.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Purpose---Corpus of


litigation would be preserved during pendency of proceedings.

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

----O. I, Rr.3 & 10(2)---Specific allegations and prayer made against a party---Effect---
Such party could not be said to be unnecessary and improper party to proceedings---
Principles.

Mirza Sarfaraz Ahmed for Plaintiff.

Amir Ali for Defendants Nos.1, 2 and 4.

Ms. Shamim Akhtar for Defendant No.3.

Page No. 1 of 4
Qazi Majid Ali, Asstt. A.-G. for Defendants Nos.4 and 5.

Ahmed Pirzada for Board of Revenue.

ORDER

NADEEM AZHAR SIDDIQI, J.---1. By this application the plaintiff has prayed for
amendment in the plaint.

Learned counsel for the plaintiff states that due to some human error prayer of possession
of the land has not been included in the plaint. He then submits that clause (d) may be
allowed to be added in the prayer clause of the suit which contains direction to the
defendants to handover the possession of the suit-land of the plaintiff. He further submits
that the amendment in the plaint will not change the nature and complexion of the suit
and the prayer of possession is a consequential relief and is arising out of the same cause
of action. He also submits that from the reports of the Mukhtiarkar and Nazir of this
Court it is clear that the plaintiff is not in possession of the suit property and being the
lawful lessee the Government of Sindh is entitled to the possession of suit property.

Learned counsel for the defendants Nos.1, 2 and 4 has opposed the instant application
and submits that from the reports of Mukhtiarkar as well as Nazir of this Court it is clear
that the defendants Nos.1, 2 and 4 are not in possession of the suit property and that the
defendants Nos.6 and 7 are in possession of the suit property.

Learned A.A.-G. and Mr. Ahmed Pirzada submit that the plaintiff was never in possession
of the suit property and at this stage, he is not entitled to claim the possession by way of
amendment in the plaint.

I have heard the learned counsel for the parties and perused the record of this case very
carefully.

It is not disputed that the land was allotted to one Mst. Nusrat Jehan from whom the
plaintiff has acquired the said land with permission of the District Officer (Revenue). The
amendment in the plaint can be allowed if it will not change the nature and complexion of
the suit and will not change the cause of action. The amendment can be allowed to avoid
multiplicity of proceedings and to determine the real matter in controversy.

The plaintiff is claiming declaration as to the right and title in the suit-land and prayer of
possession appears to be a consequential relief in relation to the declaration of the right in
the property. The proposed amendment will not change the nature and complexion of the
suit and the cause of action.

In view of the above, this application is allowed. Amended plaint be filed within 15 days
with advance copy to the learned counsel appearing in this matter before the next date.

2. By this application the plaintiff has prayed for restraining order against the defendants
from creating any third party interest in the suit property.

The plaintiff claims that he is lessee of the land and was illegally dispossessed from the
suit-land by the defendants, who are now in possession of the suit property and the
plaintiff apprehends that during pendency of the suit they will encumber or create any
third party interest in the suit property to frustrate the suit.

Counter-affidavit to the said application has been filed by the defendant No. 1 stating
therein that the claim of plaintiff is false and the plaintiff has failed to make, out a prima
facie case in his favour. It was further stated in the counter-affidavit that the land was
allotted in favour of Ali Naveed, minor son of the defendant No. 1.

Learned A.A.-G. and Mr. Ahmed Pirzada have opposed this application on the ground
that the plaintiff was never in possession of the suit property and has violated the terms
and conditions of the lease by not using the said property for the purpose of poultry
farming and the lease is liable to be cancelled.

Page No. 2 of 4
From the perusal of the record it appears that the official defendants have not disputed the
allotment of the land to Mst. Nusrat Jehan from whom the plaintiff has acquired the suit
property for the remaining period of lease. Original lease was granted in the year 1987-88
and till date no action for cancellation of the said lease on the ground of violation of
terms and conditions of the lease has been initiated by the Government of Sindh.

From the documents annexed with the plaint, which are not disputed, it appears that the
plaintiff has made out a prima facie case, as the land was allotted to him.

The contention of learned A.A.G. that the plaintiff was never in possession of the suit
property is matter of evidence and at this stage, no findings can be given in this regard.
As far as the contention of learned counsel for the plaintiff that till such time lease exists
in favour of the plaintiff the defendants cannot re-allot the land to someone else has force.

For granting an injunction the plaintiff has to make out a prima facie case and to show
that in case the injunction is not granted he will suffer irreparable loss. No doubt the
plaintiff is not in possession of the suit property, but he has the right to claim the
possession of suit property on the basis of the documents annexed with the plaint and in
case the land is further encumbered or alienated the same will create problems in
executing the judgment and decree which may be passed in this matter. Even otherwise,
during pendency of proceedings the corpus of the litigation is to be preserved.

In view of the above, this application is allowed and the defendants are restrained from
creating any third party interest in the suit property.

3. By this application the defendants Nos.1, 2 and 4 have prayed that their names may be
struck off from the array of the defendants.

Learned counsel for the defendants Nos.1, 2 and 4 submits that the defendants Nos.1, 2
and 4 have no concern with the land in question and has referred to the Nazir's report
dated 14-12-2006 and the report of Mukhtiarkar dated 26-8-2006 and submits that from
the above two reports it is clear that the defendants Nos.6 and 7 are in possession of the
suit property and the defendants Nos.1, 2 and 4 have no concern.

Learned counsel for the plaintiff has opposed the application and has referred to para.5 of
the plaint in which the allegations have been levelled against the defendants Nos.1, 2 and
4 that they used to visit the suit-land and attempted to put cement and Bajri on the suit-
land. He then refers to the prayer clause (b) in which specific relief has been sought
against the defendants Nos.1, 2 and 4. He also refers to para.3 of the written statement of
the defendant No.1 in which the defendant No.1 has stated that the claim of plaintiff is
totally based on fraud and the suit property was in the name of minor son of the
defendant No.1 since 2-2-1997 and the defendant No.1 was in possession of the suit
property.

From the contents of the written statement it is clear that the defendant No.1 is claiming
right and interest in the suit property and the contentions of learned counsel for the said
defendants appear to be against the contents of the written statement of the said
defendants.

In view of the specific allegations and prayer it cannot be said that the defendants Nos.1,
2 and 4 are not necessary and proper party to the proceedings.

Since the claim of defendant No.1 is that the property exists in the name of his minor son
he appears to be necessary and proper party to the proceedings, hence this application is
allowed to the extent that the name of defendant No.1 be deleted from the array of the
defendants and instead of him, his son Ali Naveed be impleaded as defendant No.1.
Learned counsel for the plaintiff wile filing amended plaint may add Ali Naveed as
defendant No.1.

Before proceeding further, it will be appropriate that the Government of Sindh may
enquire into the matter of transfer of land to Naseem Akhtar and its further transfer to Ali

Page No. 3 of 4
Naveed son of Tahir Naveed. The matter is referred to Mr. Nazar Muhammad Leghari,
Special Secretary, Land Utilization Department, Government of Sindh for conducting
such inquiry himself or through some of his honest and competent subordinate officer.

4. Deferred.

Adjourned to a date in office.

S.A.K./R-44/K Order accordingly.

Page No. 4 of 4
2009 Y L R 1163

[Islamabad]

Before Syed Qalb-i-Hassan, J

SARWAR---Petitioner

Versus

MUHAMMAD RIZWAN and 7 others---Respondents

Civil Revision No.198 of 2005, decided on 28th October, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.17 & O. XLI, R.33---Specific Relied Act (I of 1877), S.42---Amendment of
plaint---Scope---Suit for declaration of title without praying for possession of suit-land--
Appeal against judgment of Trial Court dismissing suit for being not maintainable--
Acceptance of application for amendment of plaint to include therein prayer of
possession---Validity---Addition of such prayer allowed as a consequential relief was not
alien to or inconsistent with frame of suit filed by plaintiff-Appellate Court had rightly
allowed amendment of plaint---High Court dismissed revision petition filed by defendant.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Jane Margrete William v.
Abdul Hamid Mian 1994 SCMR 1555; Muhammad Shafi and other v. L.D.A. and others,
1993 CLC 2482 and Muhammad Ismail and others v. Roshan Ara Begum and others PLD
2001 Lah. 28 rel.

Moulvi Ejaz-ul-Haq for Petitioner.

Respondents ex parte.

Date of hearing: 17th October, 2008.

JUDGMENT

SYED QALB-I-HASSAN, J.---Relevant facts for the disposal of this revision petition are
that respondents Nos. 1 to 7 filed a suit for declaration and permanent injunction and
challenged the Mutation No.3616 dated 23-1-1988 in favour of the present petitioner. The
petitioner entered appearance, submitted his written statement and contested the suit. The
learned trial Court out of divergent pleading framed the following issues:--

(1) Whether the plaintiff has got no cause of action, and locus standi to file the suit?
OPD.

(2) Whether the suit is not maintainable in its present form? OPD.

(3) Whether the suit is barred under section 11 of C.P.C.? OPD.

(4) Whether the suit is barred under Order II, rule. 2 C.P.C.? OPD.

(5) Whether the suit .is bad for misjoinder and non joinder of parties ? OPD.

(6) Whether the plaintiff has not affixed court-fee property? if so, what is the correct
valuation? OPD.

(7) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.

(8) Whether the plaintiff has not come to the Court with clean hands? OPD.

(9) Whether the defendants are entitled for special costs? If so, its extent? OPD

Page No. 1 of 3
(10) Whether the mutation No.3616 dated 23-1-1988 is illegal, void and ineffective
against the rights of the plaintiff? OPP.

(11) Whether the plaintiff are owners of the suit-land? OPP.

(12) Relief.

2. The learned trial Court dismissed the suit on the ground that respondents Nos.1 to 7 are
not in possession of the suit property, therefore, the suit is not proceedable in view of bar
contained in proviso to section 42 of Specific Relief Act, 1877. Respondents Nos.1 to 7
filed an appeal before Additional District Judge, Islamabad and during the pendency of
the appeal they moved m application for amendment of the plaint. Although the
Additional District Judge, Islamabad, agreed with the finding of the learned trial Court
but allowed the application for amendment of the suit and case was remanded to the
learned trial Court with direction to frame additional issues after receipt of amended
plaint and written statement, recording of evidence of the additional issues and to decide
the suit afresh.

3. The petitioner has impugned the validity and proprietary of the judgment passed by the
Additional District Judge, Islamabad through the instant revision petition. The revision
petition was initially filed in Lahore High Court, Rawalpindi Bench, Rawalpindi and was
transferred to this Court after establishment of Islamabad High Court. Notices were
issued to the respondents through courier service on 28-5-2008 and 6-6-2008 but no body
turned up on behalf of the respondents, before the respondents were served through
publication in daily Khabrain on 8-9-2008. Even after the publication, the respondents
did not enter appearance, therefore, they were proceeded ex parte on 8-9-2008.

4. Learned counsel for the petitioner contended that in view of the averments made in the
plaint it is established that the respondents are not in possession of the disputed property
and they have not prayed for consequential relief, therefore, the suit was rightly
dismissed as not maintainable but the learned lower appellate Court has granted the
amendment to fill in the lacuna which change the entire complexion of the suit. Learned
counsel further contended that the learned lower Court has not applied its judicial mind
which has caused serious prejudice to the petitioner's right and exercised its jurisdiction
not vested in it and acted in the exercise of its jurisdiction illegally and with material
irregularity. Learned counsel further contended that the learned lower Court has
overlooked the principle laid down in proviso to section 42 of the Specific Relief Act,
1877 and prayed for the acceptance of the Civil Revision with dismissal of the suit as not
maintainable.

5. Arguments heard record perused.

6. The main grievance of the learned counsel for the petitioner is that the learned lower
appellate Court has exercised its jurisdiction illegally and with material irregularities
while allowing the amendment in an incompetent suit. The form of the suit is defective,
therefore, the learned lower Court had no choice but to dismiss the appeal and to upheld
the judgment and decree of the learned trial Court. In Ahmad Din v. Muhammad Shafi
and others (PLD 1971 SC 762), the Honourable Supreme Court of Pakistan held as
follows:--

"The contention of the learned coui.sci for the appellant that the suit could not fail merely
by reason of the fact that the consequential relief by way of possession had not been
claimed is not altogether without substance. If his suit was otherwise maintainable and he
was otherwise entitled to the relief it was open to the Courts to allow him to amend the
plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees
and then to grant him relief even though he had not specifically asked for it.".

In Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555) the Honourable
Supreme Court of Pakistan observed that in suit for declaration and permanent injunction
addition of relief of possession of properties by way of amendment was neither alien nor
inconsistent with the frame of suit. In Muhammad Shafi and others v. LDA and others

Page No. 2 of 3
(1993 CLC 2482) in view of the dictum laid down by the Honourable Supreme Court of
Pakistan in Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) held as
follows:--

"Declaratory suit on the basis of title could not be dismissed on the ground that plaintiffs
were not in possession of property in question--Proper course in such case would be to
allow plaintiff to amend plaint and to ask for possession."

In Muhammad Ismail and others v. Roshan Ara Begum and others (PLD 2001 A Lahore
28) it is observed that where form of suit was found to be defective, plaintiff ought to be
first given a chance to correct the same by way of amendment in a manner what would
not change the nature or complexion of the suit.

7. Respondents in their application before the learned lower appellate Court have prayed
for the addition of possession as a consequential relief which is not alien or inconsistent
with the frame of suit filed by them.

8. In view of the law laid down by the Supreme Court of Pakistan and constantly
followed by the respective High Courts of Pakistan, the learned lower appellate Court has
not committed any error and has rightly allowed amendment of the plaint. The
amendment sought and allowed is consequential relief which will not change the form or
complexion of the suit.

9. In view of what has been discussed above, the revision petition is dismissed with no
order as to costs.

S. A.K. /S-8/Isl. Revision dismissed.

Page No. 3 of 3
2007 M L D 1244

[Lahore]

Before Muhammad Muzammal Khan, J

Mian TARIQ AZIZ---Petitioner

Versus

Mst. GULNAZ JAVED and others---Respondents

C.R. 748 of 2007, decided on 26th April, 2007.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Specific Relief Act (I of 1877), S.42---Amendment of written


statement---Respondents filed suit for possession/declaration claiming to be owners as
successors of deceased owner of suit property and asserted that their pre-decessor-in-
interest entered into agreement to sell his land with the petitioner, but petitioner had
failed to perform his part of contract and he did not pay outstanding sale price---
Petitioner being defendant, moved application under O.VI, R.17, C.P.C. praying
amendment of written statement, so as to plead that predecessor-in-interest of
respondents was not owner of property in dispute---Respondents opposed the prayer of
amendment of written statement---Trial Court having dismissed application of petitioner
for amendment of plaint, petitioner had filed revision---Validity---Petitioner in his written
statement, had not denied title of predecessor-in-interest of respondents, but had proposed
amendment in which he had prayed to set up entirely new case, which was in clear
contradiction to his earlier stance---Petitioner having once admitted title/ownership of
predecessor-in-interest of respondents, could not be permitted to turn around to say that
he was not owner of property in dispute---Proposed amendment would introduce a new
defence plea in clear contradiction to earlier defence, which course was not permissible
under the law---No doubt amendments in the pleadings of the parties were to be liberally
allowed under O.VI, R.17, C.P.C. in case those did not aim at to set up a new case,
changing the entire complexion of pleas raised or set up in defence or substituted original
cause of action---Impugned order had revealed that controversy was correctly put to rest
by the Trial Court without committing any error of law/facts or illegality/irregularity in
terms of S.115, C.P.C.---No case for interference in revisional jurisdiction of High Court
having been made out, revision petition was dismissed.

Tariq Mehmood Niazi v. Nadeem Afzal and another PLD 1996 Lahore 429 and Messrs
Trans Oceanic Steamship Co. Limited and another v. (Messrs) Tayoob Moosa and
Company PLD 1959 (W.P.) Karachi 399 ref.

M. Abbas Mirza for Petitioner.

Saqib Saleem and Faisal Zaman for Respondents.

ORDER

MUHAMMAD MUZAMMAL KHAN, J---Instant civil revision assailed the


judgment/order, dated 23-1-2007 passed by the learned Civil Judge Lahore whereby
application of the petitioner under Order VI. Rule 17, C.P.C. praying amendment of his
written statement was dismissed.

2. Succinctly, relevant facts are that respondents filed a suit for possession/declaration of
being owners as successors of late Sheikh Javed Iqbal Uppal, regarding land detailed in
para. 2 of the plaint, with the assertions that their predecessor (Sheikh Javed Iqbal Uppal)
entered into an agreement to sell his land for an amount of Rs.27,00,000 against an
earnest money of Rs.5,00,000 on 5-9-1999 with the petitioner. It was further pleaded that
petitioner through a subsequent agreement, agreed to enhance sale price to Rs.30,50,000
at the time of execution/registration of sale deed of the land measuring 1 kanal 12 marlas.

Page No. 1 of 2
Respondents also averred that petitioner failed to perform his part of contract and did not
pay the outstanding sale price and at the same time, he did not surrender the possession
thus their land was in his illegal possession and they were entitled to recover mesne profit
which was denied by the petitioner, leading to institution of the suit.

3. Petitioner being defendant in the suit contested the same by filing his written statement
wherein he raised certain preliminary objections and denied his liability to pay mesne
profit or to surrender the possession of the land where over he claimed to have raised
certain constructions, including installation of machinery etc. Petitioner vide preliminary
objection No.6 of written statement, has pleaded that he is in possession of the suit
property on the basis of sales by Javed Iqbal and other vendors and in paragraph No.6-A
of the reply on merits, he has asserted that predecessor-in-interest of the
respondents/plaintiffs had received a substantial amount from him in lieu of the land in
his possession, thus they are liable to pay compensation to him at the bank rate.

4. Pending suit of the respondents, petitioner moved an application under Order VI Rule
17 read with section 151, C.P.C. praying amendment of the written statement, so as to
plead that deceased Sh. Javed Iqbal Uppal was not owner of the property, as the same was
mortgaged for 5 years but was not redeemed inspite of lapse of 65 years leading to
decree, dated 7-7-1994 in favour of some Sajjad Hussain and others. The proposed
amendment by the petitioner was detailed in para. 2 of his application. Respondents
opposed the prayer of amendment of the written statement and the learned Civil Judge
seized of the matter, after hearing the parties, dismissed the application vide his order,
dated 23-1-2007. Petitioner being aggrieved of dismissal of his application, filed instant
civil revision and respondents in response to notice by this Court, have appeared through
their counsel.

5. I have heard the learned counsel for the parties and have examined the record,
appended herewith. Undisputedly, petitioner in his written statement had not denied title
of predecessor-in-interest of the respondents, as noted in the factual part of this judgment
but now through proposed amendment he has prayed to set up an absolutely new case
which is in clear contradiction to his earlier stance. Petitioner having once admitted
ownership/title of Sheikh Javed Iqbal Uppal cannot be permitted to turn back to say that
he was not owner of the property under his possession. Petitioner was aware of the facts
leading to his prayer for amendment of the written statement, at the time when the same,
was originally filed and then, at the time of filing of second written statement in response
to amended plant but he did not assert these facts. The proposed amendment will
introduce a new defence plea in clear contradiction to earlier defence but this course is
not permissible, under law.

6. No doubt amendments in the pleadings of the parties are to be liberally allowed under
Order VI Rule 17, C.P.C., in case those do not aim at to set up a new' case, changing the
entire complexion of pleas raised or set up in defence or substitute the original cause of
action etc. The judgments in the cases of Tariq Mehmood Niazi v. Nadeem Afzal and
another (PLD 1996 Lahore 429), (Messrs) Trans Oceanic Steamship Co. Limited and
another v. (Messrs) Tayoob Moosa and Company (PLD 1959 (W.P.) Karachi 399) go
along way to disapprove the prayer of amendment of written statement made by the
petitioner. Be that as it may, scan of record and impugned order revealed that controversy
was correctly put to rest, without committing any error of law/facts or
illegality/irregularity in terms of section 115, C.P.C.

7. For the reasons noted above, no case for interference in revisional jurisdiction, of this
Court was made out and consequently instant petition being devoid of any merit, is
dismissed with no order as to costs.

H.B.T./T-15/L Revision dismissed.

Page No. 2 of 2
2007 C L C 8

[Lahore]

Before Jawwad S. Khawaja, J

Ch. NAVEED HUSSAIN----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 17 others-


Respondents

Civil Revision No.931 of 2004, heard on 14th February, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration.
without claiming possession as consequential relief---Application for amendment in
plaint---Scope--.-Plaintiff filed suit for declaration of his proprietary interest in shop
which was owned by his deceased father---Defendants, who were plaintiff's deceased
brother’s legal heirs filed a separate suit claiming therein that deceased father of plaintiff,
who was grandfather of defendants, was a Benami owner of disputed shop which actually
belonged to father of defendants---Trial Court decreed the suit---On appeal thereagainst
Appellate Court not only dismissed appeal but non-suited plaintiff on ground that he had
sought simple declaration without claiming possession as consequential relief---Plaintiff
along with civil revision filed application to amend prayer in his plaint to seek possession
of his share in disputed shop and contended that he was entitled to seek amendment in
plaint/prayer at any stage---Validity---Plaintiff was not to be non-suited simply because
he had not prayed for possession of disputed property through partition---Controversy
between the parties essentially related to denial of plaintiff's interest by defendants and
prayer was only consequential to determination of aforesaid controversy---Plaintiff's suit
was allowed to be converted into a suit for possession through partition and he was
allowed to file his amended plaint before Trial Court---Suit was remanded to Trial Court
for proceeding in the matter with object of deciding the same as a partition suit.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

Muhammad Amin Lone for Petitioner.

Sh. Talib Hussain for Respondent No.1.

Sajid Mehmood Sheikh for contesting Respondents.

Date of hearing: 14th February, 2005.

JUDGMENT

JAWWAD S. KHAWAJA, J.--- Ch. Naveed Hussain petitioner/plaintiff impugns the


appellate decree dated 3-12-2003 passed by the learned Additional District Judge,
Lahore.

2. The petitioner is the son of Ashiq Hussain. It is his case that Shop No.51 in Sabzi
Mandi belonged to the said Ashiq Hussain, and as such, he being legal heir of the said
Ashiq Hussain, is entitled to a declaration of his proprietary interest in the said shop.

3. Ch. Shafique Hussain was the full brother of the petitioner. Shafique Hussain has died.
Four of his L.Rs. who are respondents Nos.13, 14, 16 and 17 in this petition, filed a
separate suit claiming that Ashiq Hussain was merely a Benamidar whereas the real and
beneficial interest of disputed Shop No.51 was vested in Ch. Shafique Hussain. The suit
filed by the petitioner and the suit filed by the above mentioned L.Rs. of Ch. Shafique
Hussain were consolidated. By means of a common judgment dated 6-7-2002, the

Page No. 1 of 2
petitioner's suit was' decreed, while the suit filed by the L.Rs. of Ch. Shafique Hussain
was dismissed.

4. The L.Rs. of Shafique Hussain preferred two appeals to assail the decrees of the
learned trial Court. The learned appellate Court has dismissed both appeals. However, the
appellate Court has also non-suited the petitioner on the ground that he had sought a
simple declaration without claiming possession by way of consequential relief. Learned
counsel states that in fact consequential relief was sought praying that the name of the
petitioner Ch. Naveed Hussain be ordered to be entered in the record maintained by the
L.D.A. (respondent No.1). In these circumstances, it is agued that the suit filed by the
petitioner could not have been dismissed.

5. In addition and by way of abundant caution, learned counsel states that he has filed an
application to amend the prayer in his plaint to seek possession of his share of the
disputed shop. Learned counsel has also referred to the case titled Mst. Ghulam Bibi and
others v. Sarsa Khan and others PLD 1985. SC 345 to argue that the petitioner was
entitled to seek amendment in the prayer clause at any stage and in accordance with the
said precedent, the Court was also obliged to direct the petitioner to amend his plaint with
the object of seeking possession by way of consequential relief.

6. The L.Rs. of Shafique Hussain are the only contesting respondents and are represented
by counsel. Learned counsel for these L.Rs. of Shafique Hussain has attempted to reopen
the factual issue concurrently decided by the two Courts below as to the exclusive claim
asserted by Shafique Hussain over the disputed shop. I have examined the evidence with
the assistance of both learned counsel and find that the conclusion arrived at by the
Courts below that the shop was owned by Ashiq Hussain and that Shafique Hussain had
no exclusive beneficial interest therein is consistent with the record. This concurrent
finding, therefore, does not require interference.

7. As to the argument of learned counsel for the petitioner that he could not have been
non-suited simply because he had not prayed for possession of the disputed property
through partition, this submission is well-founded and is supported by the case of Mst.
Ghulam Bibi and others v. Sarsa Khan and others cited by him it is also clear that the
controversy between the parties essentially related to the denial of the petitioner's interest
by Shafique Hussain and his L.Rs. The prayer is only consequential to the determination
of the aforesaid controversy which, as noted above, has been settled by the Courts below.

8. The petitioner has also filed an application under Order VI, rule 17, C.P.C. (C.M. 1/C
of 2004) praying that he be allowed to amend the plaint so as to incorporate a prayer for
possession of the disputed shop through partition. Bearing in mind the dictum of the
Honourable Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and
others (supra) this petition is allowed and the petitioner is permitted to amend his plaint
as prayed for in this petition.

9. As a result of the foregoing the petitioner's suit is allowed to be converted into a suit
for possession through partition. He may file his amended plaint before the learned trial
Court. The suit is remanded to the learned trial Court for proceeding in the matter with
the object of deciding the same as a partition suit.

10. This is an old matter. The parties represented before me are directed to appear before
the learned Senior Civil Judge, Lahore, on 1-3-2005 whereafter the learned Senior Civil
Judge shall either decide the matter himself or mark the same to a competent Civil Court
for decision.

S.M.B./N-89/L Case remanded.

Page No. 2 of 2
1999 M L D 3038

[Karachi]

Before Rana Bhagwan Das and Sabihuddin Ahmed, JJ

ZAHOOR AHMED ---Appellant

versus

Syed NAZIR HUSSAIN RIZVI---Respondent

High Court Appeals Nos. 52 and 53 of 1989, decided on 9th February, 1999

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

----O. VI, R. 17---Amendment of pleadings---Principles---Leave to amend, grant of---


Where the applicant had acted bona fide, or a claim to which the plaintiff may be entitled,
was left out by a bona fide mistake or by inadvertence or on a misapprehension of facts,
amendment should be permitted by adding the claim so left out---Amendment, however,
could be refused where the applicant had acted mala fide, or the omission was
deliberate---Same principles, as were available to cases of amendment by adding new
reliefs, applied to amendments by adding new grounds of reliefs ---Main object in
allowing amendments was to get the rights of the parties and to avoid multiplicity of the
suits, where the dispute could be settled in the suit already instituted without unfairness to
the other side.

K. M. Munir v Rashid Ahmed P L D 1964 (W. P.) Kar. 172; K. M. Munir v. Rashid
Ahmed P L D 1963 Kar. 905; Abdus Samad v. Faqir Mia P L D 1967 Dacca 509;
Mohiuddin v. Jamila Bibi P L J 1973 Kar. 63; Ghulam Ali v. Pakistan P L D 1960 Kar.
581; Karamat v. Muhammad Younas P L D 1963 S C 191; National Shipping Corporation
v. A.R. Siddik 1974 S C M R 131; Saint John Ambulance v. Pak Red Cross Society 1985
C L C 2146; Ghulam Bibi v. Sarsa Khan P L D 1985 S C 345; Budho v. Ghulam Shah P L
D 1963 S C 553; K. M. Muneer v. Rashid Ahmed P L D 1964 Kar. 172; Ghulam Abbas v.
Chief Administrator, Aukaf 1981 S C M R 753; Muhammad Iqbal v. Muhammad Ramzan
P L D 1987 Azad J & K 170 and National Fertilizer Marketing Ltd. v. Secretary, Local
Government 1992 M L D 1203 ref.

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

----O. VI, R.17 & O. XXXVII, R.2---Amendment of prayer clause---Plaintiffs filed their
suits on the basis of promissory notes executed by the defendant--Leave to defend was
granted to the defendant---Parties admitted that there was no transaction of money but the
promissory notes were executed on the basis of business dealings---Plaintiffs applied for
the amendment of the prayer clause, so as to enable the Court to pass decree in the
ordinary manner as such the applications were dismissed by the Trial Court---Validity---
No inconsistency was sought to be introduced by such amendment---Such relief could not
be refused as the plaintiff could always fall back upon the original debt if relief could not
be granted on the basis of a negotiable instruments, under O.XXXVII, C. P. C.---Order
dismissing applications was recalled in circumstances.

Mansoorul Arfin for Appellant.

Muhammad Sharif for Respondent

Date of hearing: 28th January, 1999.

JUDGMENT

RANA BHAGWAN DAS, J.---This judgment shall dispose of the aforesaid two appeals
directed against the identical orders passed in Suits Nos. 789 of 1985 and 790 of 1985

Page No. 1 of 6
both, dated 15-2-1989 recorded by the learned Single Judge disallowing the prayer for
amendment of plaint seeking amendment in the prayer clause as under:--

In the alternative this Honourable Court be pleased to pass decree for Rs. 7,00,000
against the defendant in the ordinary manner."

Only difference in the prayer clause in the connected suit is in respect of the amount
which is for Rs. 4,00,000.

2. Appellant filed two suits under Order XXXVII, rule. 2, C. P. C., on the strength of
promissory notes executed in both cases by the respondent, on the averments that in the
month of August, 1982, respondent approached him and requested to give him a friendly
loan of the amount in the suit. Appellant having acceded to the respondent's request had
given him a friendly loan of Rs. 7,00,000 and Rs. 4,00,000 respectively on or before 25-
8-1982. It was averred that in consideration of having received the aforesaid sums from
the appellant, the respondent had executed promissory notes by way of security on 25th
August, 1982 in his favour with firm undertaking that the respondent would repay the
loan. It was the case of the appellant before the learned Single Judge that after the receipt
of aforesaid friendly loan, respondent was called upon to repay the loan amount but
despite repeated promises from time to time, he did not pay a single penny towards the
repayment of the loan hence the suit for recovery of the amount under summary chapter.

3. Respondent in each of the suit moved application for leave to defend, which was
granted after a great deal of time. After the settlement of issues evidence of appellant was
recorded before the learned Single Judge when it transpired that no amount in cash in fact
had been passed on to the respondent and the pro-note was executed during the course of
business dealing between the parties. Appellant at this stage moved an application for
amendment in the prayer clause, which was declined by the learned Single Judge through
identical orders which have been impugned in the present appeals.

4. Mr. Mansoorul Arfin, learned counsel for the appellants contended that indeed the
amendment asked for was in the nature of alternative plea as the appellant in the plaint
had specifically pleaded that parties were known to each other for the last many years as
they had business dealings. He submitted that in case the appellant was found not entitled
to decree on the strength of the promissory note under the summary procedure, the suit
could be tried as an ordinary suit and the relief granted to the appellant. According to the
learned counsel, the proposed amendment neither changed the complexion of the suit nor
did it introduce a new cause of action and inconsistent plea.

5. On the other hand Mr. Muhammad Sharif, learned counsel for the respondent seriously
and vigorously controverted the pleas advanced on behalf of the appellant and contended
that while a party may in law be entitled to raise an alternate plea in support of his claim,
no party is entitled to agitate inconsistent plea and more particularly a mutual destructive
and inconsistent case. He further submitted that for the purpose of allowing amendment
of pleadings, bona fides of the party must be established and in the present case appellant
having failed to establish his case on the basis of a negotiable instrument had either filed
the suit mala fide or the proposed amendment itself was not asked for bona fide.

6. Learned counsel for the appellant relied upon the following cases in support of his
submission:--

(i) K. M. Munir v Rashid Ahmed (P L D 1964 (W. P.) Kar. 172);

(ii) K. M. Munir v. Rashid Ahmed (P L D 1963 Kar. 905);

(iii) Abdus Samad v. Faqir Mia (P L D 1967 Dacca 509);

(iv) Mohiuddin v. Jamila Bibi (P L J 1973 Car. 63);

(v) Ghulam Ali v. Pakistan (P L D 1960 Kar. 581);

(vi) Karamat v. Mohammad Younas (P L D 1963 S C 191);

Page No. 2 of 6
(vii) National Shipping Corporation v. A.R. Siddique (1974 S C M R 131);

(viii) Saint John Ambulance v. Pak Red Cross Society (1985 C L C 2146);

(ix) Ghulam Bibi v. Sarsa Khan (P L D 1985 S C 345);

7. In K.M. Munir's case (supra) authored by late Wahiduddin Ahmed (as he then was) it
was held that it is open in law to a plaintiff in cases where in respect of an original
liability to pay a certain sum of money, a document such as pro-note etc. is found in
admissiable, to base the claim on original consideration and allowing amendment for the
purpose, does not amount to a substitution of a distinction cause of action nor does it in
the least change or alter the nature of the suit.

8. Case at Serial No. 11 (supra) is in fact a reference under Rule 10 of Sindh Chief Court
Rules (O. S.) in which two questions were referred for decision to the Division Bench
namely (i) Can the plaintiff sue on the original cause of action when it was replaced by an
inadmissible pro-note? (ii) Is there any cause of action independent of the pro-note?

9. In Abdus Samad's case a Division Bench of Dacca in Second Appeal propounded the
question of law as under:--

"There is also no manner of doubt that plaintiff's case is that the promissory note was
collateral security to safeguard the payment of the money. Plaintiff's whole case is based
on money had, and received by the defendant which the latter had undertaken to pay
back. Therefore, even if the promissory note cannot be the basis of plaintiff's claim, we
fail to see why he would not be allowed to prove the alternative case which he had made
out, namely, a breach of an undertaking given by the defendant to return the money
which he had received from the plaintiff. This is a grievance which is independent of the
promissory note although it is backed by the same as a security. In these circumstances,
we think that the best thing to do would be to allow the plaintiff to amend his plaint."

10. In Mohiuddin's case late Noorul Arfin, J., (as he then was) observed that the correct
rule is that section 118(a) raises a presumption in respect of a consideration, which is a
valid consideration in law, and not necessarily in favour of a consideration which is stated
in the Negotiable Instrument itself. However, if the consideration stated in the instrument
turns out to be undue and some other form of consideration is proved at the trial, either by
way of admission in pleadings, or in the evidence of the holder of the instrument, or
through some other evidence, then this inconsistency between the forms of consideration
should be viewed in the context of the other evidence, which comes before the Court for
the purpose of coming to the conclusion whether the defendant has diS Charged the
burden laid upon him with regard to the presumption of consideration under section 118
of the Negotiable Instruments Act.

11. In Ghulam Ali's case it was held that introducing new ground for claim does not
change a cause of action.

12. In Karamat's case (supra) the Hon'ble Supreme Court allowed the plaintiff to amend
the plaint at the stage of appeal seeking relief of possession which was not asked for in
the plaint and had become barred in the meantime taking view that nature of the suit was
not altered by addition of this prayer.

13. In National Shipping's case (supra) the claim for damages on account of loss of
damage to goods due to enemy action was allowed to be amended on the rule of law
contained in Order 11, C. P. C., expressing the view that the Courts have always inclined
to allow leave liberally to enable the parties to bring all points before it so as to avoid
multiplicity of proceedings.

14. In the case of Saint John Ambulance (supra) Ibadat Yar Khan, J (as he then was) after
a resume of the case-law from Pakistan as, well as Indian High Courts laid down that new
plea by way of amendment could be complementary of contradictory. While

Page No. 3 of 6
complementary and alternative plea would be permissible contradictory or mutually
destructive pleas could not be permitted to be incorporated at a subsequent stage.

15. 'In the case of Ghulam Ali (supra) the Supreme Court expressed the view that cause
of action, if does not change main substance of suit and nature of suit, would not change
and if that does not change question of limitation would then remain only of form and not
of substance. Amendment in the plaint, therefore, is permissible if otherwise necessary,
notwithstanding possibility that on account of some formal change, question of limitation
might have acquired pronounced importance had it not been a case of amendment. Apex
Court further held that rules of procedure were meant to advance justice and to preserve
rights of litigants and they were not meant to entrap them into blind corner so as to
frustrate the purpose of law and justice.

16. Conversely, learned counsel for the respondent relied upon the following cases:--

(i) Budho v. Ghulam Shah (P L D 1963 S C 553).

(ii) K. M. Muneer v. Rashid Ahmed (P L D 1964 Kar. 172).

(iii) Para. 14 of case reported in Saint John Ambulance v. Pak Red Cross Society
(1985 C L C 2146 also reported in 1985 C L C 2146.

(iv) Ghulam Abbas v. Chief Administrator Okaf (1981 S C M R 753).

(v) Mohammad Iqbal v. Muhammad Ramzan (P L D 1987 Azad J&K 170).

(vi) National Fertilizer Marketing Ltd. v. Secretary Local Government (1992 MLD
1203).

17. In Budho's case (supra) a Full Bench of the Hon'ble Supreme Court expressed the
view that "there is no bar to a person relying upon more than one alternative source of
title. An alternative case should be distinguished from an inconsistent case. No two facts
can be set to be inconsistent with each other if both could have happened. The test of
inconsistency between two facts would be that a plaint which contain both the facts could
not be verified as true by a plaintiff. If for instance the plaintiff alleges a document to be a
forgery and at the same time states that the execution by him of the document is the result
of undue influence, the pleas are inconsistent with each other and a plaintiff cannot verify
both statement of fact as true. In the case before us the two alleged inconsistent facts are
only the Will and the relationship. There is obviously no inconsistency between the facts
themselves. When a party forwards mote than one source of his title he is not taking up
inconsistent position. He is only pleading in the alternative".

The view expressed in K. M. Muneer's case has already been reproduced and does not
call for reiteration.

18. Para. 14 of the case reported in Saint Joan's case is an extract from the 'case of
Allauddin v. Mst. Farkhunda (P L D 1953 Lah. 131) illustrating the pleadings and
expressing the view that anybody can verify these facts with the strictest regard for truth.
Many other cases of apparently inconsistent pleas will, when analysed yield similar
results. The Court concluded by laying down the rule that inconsistency is only in the
legal conceptions, not in the facts stated.

19. In the case of Ghulam Abbas (supra) the Hon'ble Supreme Court declined leave to
appeal in a ease where the petitioner sought permission to raise altogether new and
inconsistent pleas which were refused by the two Courts below.

20. In Mohammad Iqbal's case (supra) the High Court of Azad Jammu and Kashmir
expressed the view that if in suit for pre-emption a plaintiff wants to amend his plaint in
order that he may be able to plead that he had a superior right of pre-emption while in the
original complaint his plea was not to that effect, the Court will be slow to allow
amendment unless the omission in the first instance was either accidental or due to a slip
of pen.

Page No. 4 of 6
21. In the last case i.e. National Fertilizer v. Secretary Local Government, a learned
Single Judge of the Lahore High Court took the view that the amendment could not be
allowed where it would tantamount to permitting the petitioner to set up altogether new
case inconsistent with earlier stand taken in the main petition.

22. A resume of the case-law referred to hereinabove leads to the conclusion that an
amendment will generally be allowed where the nature of the suit is not altered unless it
prejudices or takes the opposite party by surprise. It further appears that an amendment
may be allowed even if it introduces a new grounds of claim or an allegation of fact
inconsistent with the original pleadings where the Court thinks it just and necessary. As a
general rule an amendment which changes the character of the suit will not be allowed by
the Court in the exercise of its discretion. Furthermore, the Court has no power to allow
an amendment which substitutes one distinct cause of action for another or which
materially changes the subject-matter of the suit Conversely it would appear that the
object of the law being to try the merits of the suit and to do substantial justice between
the parties an amendment may not be allowed which will work injustice to one of the
parties. The rule of conduct of the Court remains that, however, negligent or careless the
first omission may have been, and however, late the proposed amendment, the
amendment should be allowed if it can be made without injustice to the other side. The
rule, however, is not of universal application and rigid or static in itself. In the peculiar
circumstances an amendment may be allowed even where it has the effect of depriving
the defendant of his right to plead limitation or any other legal bar. Wide power of the
Court to allow the amendment cannot be disputed and though such a power should not as
a rule be exercised where it has the effect of prejudicing the defence of the opposite party
or it takes away from the defendant a legal right which has accrued to him by lapse of
time, there are cases where such considerations are outweighed by the special
circumstances of the case, it is no doubt true that an amendment may be refused when the
application is not made in good faith. Therefore, as a general rule leave to amend ought
not to be refused if the applicant has acted bona fide. It will be refused where he has been
acting mala fide. However, where a claim to which the plaintiff may be entitled was left
out by bona fide mistake or by inadvertence or on a misapprehension of facts and
amendment should be permitted by adding the claim so left out. In cases where the
omission is deliberate leave to amend ought to be refused. The same principles as are
available to cases of amendment by adding new reliefs, apply to amendments by adding
new grounds of reliefs. Thus, a new ground in support of the relief claimed cannot be said
to alter the character of the suit and will as a general rule be allowed. The main object in
allowing amendments appears to be to get the rights of the parties and to avoid
multiplicity of the suit where the dispute can be settled in the suit already instituted
without unfairness to the other side. Necessity to amend the prayer clause may arise in a
set of circumstances where leave to amend may be liberally granted at any stage in
proceedings in order to determine the real question at issue between the parties unless the
party applying for leave has acted in bad faith.

23. It is true that in both the suits the respective plaintiffs had claimed that the defendant
had approached them in August, 1982 for grant of a friendly loan and upon the request
having been acceded to, he executed promissory notes in favour of appellant Zahoor
Ahmed (plaintiff in Suit No. 789 of 1985) and Malik Muhammad Yaqoob (plaintiff in
Suit No. 790 of 1985) for Rs. 700,000 and 400,000. In evidence, however, Zahoor Ahmed
deposed about previous business dealings with the respondent/defendant and stated that
the latter owed him an amount of Rs. 1,10,000. He demanded such amount in June, July
and August, 1982 whereupon the respondent stated that he had no money but executed
the two promissory notes, dated 25-8-1982, one in his favour for Rs. 700,000 and the
other in favour of his brother-in-law Malik Muhammad Yaqoob, to whom the (Zahoor
Ahmed) owed money, for Rs. 400,000.

24. Mr. Muhammad Sharif, learned counsel for the respondent, contended that the
evidence led in both the suits was patently inconsistent with the case setup in the
respective plaint in both suits, inasmuch as while both the plaintiff speak bf a specific
amount, being disbursed as friendly loan and promissory notes for such amounts having
been executed by the respondent, the case set up in evidence was founded upon money
payable on account of past business contract. This device, accordingly to Mr. Sharif, was

Page No. 5 of 6
applied to circumvent the bar of limitation which had attached to a suit founded upon the
original consideration. By amending the plaint the appellants wished to avail another
opportunity of leading evidence and obtain a decree on a claim to which limitation had
already attached. Therefore, the request for amendment was rightly refused.

25. Indeed there may be some inconsistency between original pleading and the evidence
on record, but the fact remains that no inconsistency is sought to be introduced through
the proposed amendments. No amendments have been sought in paras. 2 and 3 of the
plaints and only the prayer clause is proposed to be amended to enable the Court to pass
decree in the ordinary manner. Such relief in our view cannot be refused as the plaintiff
can always fall back upon the original debt if relief cannot be granted on the basis of a
negotiable instruments under Order 37. Even otherwise, once leave to defend is granted
the procedure in ordinary suits has to be followed as contemplated by order 37, Rule 7.
The respondent can always rely upon any inconsistency between pleadings and evidence
or raise the question of limitation at the trial.

26. For the aforesaid facts and reasons, with utmost respects to the learned Single Judge
and due deference for the view expressed we are constrained to recall the impugned order
and allow the appeals with no order as to costs.

Q.M.H./Z-42/K Appeal allowed.

Page No. 6 of 6
1996 C L C 198

[Karachi]

Before Rasheed Ahmad Razvi, J

Commander (Retd.) MA. ANSARI---Plaintiff

versus

PAKISTAN DEFENCE HOUSING AUTHORITY and another---Defendants

Civil Miscellaneous Application No.1554 of 1995 and Suit No. 171 of 1985, decided on
3rd September, 1995.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration and
permanent injunction---Plaintiff applying for amendment in prayer clause of his plaint
seeking addition of prayer for restoration of possession by deleting prayer of demolishing
and encroachment---Entitlement---Amendment sought by plaintiff was up to the extent of
addition in prayer clause---By allowing such amendment neither nature of suit would
change nor cause of action would be affected---.Relief of possession was consequential
relief for declaration--Amendment sought by plaintiff being of technical nature, no
further evidence would be required---Application for amendment filed by plaintiff was
allowed with specified costs---Plaintiff was further directed to amend para. of plaint
relating to market value and to reassess the same for purpose of paying courtfee on
additional relief of possession.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Keramat Ali and Another
v. Muhammad Yunus Haji and others PLD 1963 SC 191; National Shipping Corporation
v. Messrs A. R. Muhammad Siddik and another 1974 SCMR 131; Mst. Ghulam Bibi and
others v. Sarsa Khan and others PLD 1985 SC 345; Mst. Barkat Bibi v. Khushi
Muhammad and others 1994 SCMR 2240; Muhammad Mian v Syed Shamimullah and
others 1995 SCMR 69 and Zubaida Bibi v. Hashmat Bibi 1993 SCMR 1882 rel.

Abul Khair Ansari for Plaintiff.

Zafar Iqbal for Defendant No.1

Habibullah Jatoi for Defendant No.2

ORDER

This is an application under Order VI, Rule 17 read with section 151 of the Civil
Procedure Code, 1908 filed by the plaintiff seeking amendment in clause (ii) of the prayer
clause in the plaint. Plaintiff is seeking addition of the prayer for restoration of the
possession by deleting the prayers of "demolishing the encroachment". The reason given
in the supporting affidavit by the plaintiff is that at the time of filing of this suit, this
prayer was not included due to oversight and inadvertence. The plaintiff has filed this suit
for declaration and permanent injunction against the defendants in respect of Plot No. 1-
A, 1st North Street, North Circular Avenue, Defence Housing Authority, Karachi
measuring 2257 square yards.

2. I have heard Mr. Abul Khair Ansari, Advocate for the plaintiff, Mr. Zafar Iqbal,
Advocate for defendant No. 1 and Mr. Habibullah Jatoi, Advocate for defendant No. 2. It
is vehemently urged by Mr. Abul Khair Ansari that by allowing amendment in the plaint
at this stage, it will not change the nature of the suit. He has also stated that addition of
the prayers for possession will neither cause any prejudice nor hardship to the defendants.
He has relied upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC
762) and Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC
191). Mr. Zafar Iqbal has strongly opposed grant of this application on the grounds that it

Page No. 1 of 3
has been filed at a very belated stage when the evidence of the parties are concluded and
the case is ripe for arguments. Mr. Jatoi has also raised plea of delay in filing the above
application. He has further urged that no reasonable or sufficient cause has been shown
by the plaintiff for filing the abovesaid application.

3. The case of the plaintiff is that the plot in question was initially of 2000 square yards
when it was first allotted to him in the year 1963 but during the measurement in the year
1964 it was found that an area of 2545 square yards is available which was given to the
plaintiff by the defendant No. 1. It is further case of the plaintiff that he has raised
construction on an area of 2257 square yards as well as he constructed boundary wall on
the further area of 288 square yards. He has also prayed for prohibitory injunction against
the defendants. In prayer clause (iv) he has also prayed for additional reliefs as this Court
may deem fit in the circumstances of the case.

4. In the case of Keramat Ali and another v. Muhammad Yunus Haji and others (PLD
1963 SC 191), one of the questions which came up before the Hon'ble Supreme Court for
consideration was whether the suit was barred under section 42 of the Specific Relief Act
when the plaintiff to whom the relief of delivery of possession was available failed to
claim such consequential relief in order to avoid payment of ad valorem court-fees. It was
held by the Hon'ble Supreme Court that the Supreme Court has power even to grant leave
to amend the plaint at the stage in which the said matter has reached before the Supreme
Court and consequently allowed the amendment and remanded the suit to the Trial Court
for disposal of the same in accordance with law. It was also held in this reported case that
by allowing amendment of the prayer clause by adding prayers for possession it does not
alter nature of the suit. In the case of Ahmad Din v. Muhammad Shafi and others (PLD
1971 SC 762), the Hon'le Supreme Court dismissed the appeal and held that the suit was
barred but in the end of the judgment, made the following observation which is very
relevant for the determination of this application:

"The contention of the learned counsel for the appellant that the suit could not fail merely
by reason of the fact that the consequential relief by way of possession had not been
claimed is not altogether without substance. If his suit was otherwise maintainable and he
was otherwise entitled to the relief it was open to the Courts to allow him to amend the
plaint by adding a prayer for possession and .paying the appropriate ad valorem court-
fees and then to grant him relief even though he had not specifically asked for it."

5. Besides the abovesaid two judgments, there are several reported cases of Supreme
Court in which the question of amendments in the prayers clause of the plaint at belated
stage was considered. In the case of National Shipping Corporation v. Messrs A.R.
Muhammad Siddik and another (1974 SCMR 131), this Court allowed an application for
amendment of plaint filed by the plaintiff to raise additional plea against which the
defendant went to the Supreme Court seeking leave to appeal which was disallowed and
it was observed by the Hon'ble Supreme Court that:

"It cannot be gainsaid that unless respondent No. 1 is allowed to raise this plea his
subsequent suit on the new plea would be barred under Order II, Rule 2, C.P.C."

This view was followed by the Supreme Court in the case of Mst. Ghulam Bibi and
others v. Sarsa Khan and others (PLD 1985 SC 345). Several other caselaws were
considered in this case. In this reported case, the plaintiff filed a suit for declaration
which was decreed by the Trial Court. The defendants went into the appeal before the
First Appellate Court and the decree of the Trial Court was set aside on the ground that
the plaintiff should have filed a suit for specific performance of agreement and not
declaratory suit. In the second appeal an application was filed to amend the plaint which
was rejected by the Second Appellate Court on the ground that it was filed at a belated
stage and if allowed it would cause injustice and injury to the defendant. Against this
order, the plaintiff went before the Supreme Court seeking leave to appeal which was
accordingly granted. The Hon'ble Supreme Court allowed the amendment of the prayers
and the suit for declaration was allowed to be converted into suit for spec performance. It
was held that these amendments would not have caused any embarrassment to the
respondents/defendants either in seeking and making similar amendments in their written
statement. It was also held that this will not change the cause of action accrued to the

Page No. 2 of 3
plaintiff. The order of the High Court was set aside and the appeal was allowed. In this
last reported case, Supreme Court reiterated the law laid down in the cases of Keramat
Ali and National Shipping Corporation. In a. recent case, the Supreme Court refused to
grant leave to the defendant against the order of Lahore High Court who was aggrieved
by the order of amendment in the plaint allowed by the First Appellate Court whereby
prayer for specific performance was added in a declaratory suit. The Supreme Court
followed the law laid down in the cases of Mst. Ghulam Bibi v. Sarsa Khan and Ahmad
Din v. Muhammad Shaft and held that by mere adding an additional prayer in the plaint
without changing the contents and averments made in the plaint, the nature of suit is not
changed or altered. (See Mst. Barkat Bibi v. Khushi Muhammad and others (1994 SCMR
2240). It was further held that such amendment will not change even the cause of action.
In the case of Muhammad Mian v. Syed Shamimullah and others (1995 SCMR 69), the
plaintiff who was appellant before the Supreme Court filed a suit for declaration,
injunction, and cancellation of mutation which was decreed by the Trial Court.
Defendant/respondent went into the appeal before the District Judge which was accepted
and the suit of the appellant was dismissed. This Court maintained the judgment of the
learned District Judge, inter alia on the ground that the appellant/plaintiff failed to seek
relief for recovery of possession of the disputed quarter. Plaintiff went before the
Supreme Court where leave was granted. At the appeal stage before the Supreme Court,
appellant/plaintiff filed application for amendment of the plaint. The amendments sought
were in regard to the prayer for possession and addition of Rs.50,000 as court-fees.
Appellants were allowed amendment and the fording of this Court was set aside. In this
reported case, the rule laid down by the Supreme Court in the case of Ahmad Din v.
Muhammad Shafi (PLD 1971 SC 762) was reiterated and it was held as follows:--

"The application has been contested by the respondents. It has been stated that the
application has been filed after long delay. The suit was filed in the year 1979, but the
relief of possession was not claimed, therefore, the application for amendment may not
be allowed at this belated stage. The amendment claimed by the petitioner will not alter
the nature of the suit or relief. The relief of possession is consequential relief for
declaration. This relief arises out of the claim of the appellant. The amendment sought by
the appellant is only of technical nature. No. further evidence is required. In Ahmad Din
v. Muhammad Shafi (PLD 1971 SC 762) it has been observed that `the suit could not fail
merely by reason of fact that consequential relief by way of possession had not been
claimed. If the suit was otherwise maintainable and the appellant was otherwise entitled
to the relief it was open to the Courts to allow him, to amend the plaint by adding a
prayer for possession and paying the appropriate ad valorem courtfees.' In Zubaida Bibi
v. Hashmat Bibi (1993 SCMR 1882) the prayer for amendment of plaint was allowed.
We, therefore, allow the amendment at the cost of Rs.5,000. The appellant shall pay ad
valorem court-fee

6. I have gone through the case of the parties. Amendment sought by the plaintiff is up to
the extent of addition in the prayer clause. Keeping in view the law laid down by the
Supreme Court and as discussed hereinabove, I am of the view that if such amendment is
allowed, it will neither change the nature of suit nor will change the cause of action. I,
therefore, allow the application for amendment filed by the plaintiff as prayed with cost
of Rs.5,000 which shall be shared equally by the defendants for the reason that this
application was filed at belated stage. The plaintiff is further directed to amend para. 20
of the plaint and to re-assess the market value of the property for the purpose of paying
court-fees on the additional relief of possession. With these observations, C.MA. No.
1554 of 1995 stands disposed of.

AA./M-2151/K Order accordingly.

Page No. 3 of 3
1988 C L C 402

[Lahore]

Before Ruston S. Sidhwa, J

Sardar MUHAMMAD ANWAR KHAN--Appellant

versus

Mian ASGHAR ALI--Respondent

Civil Revision No.402/D of 1980 and Writ Petition No.8739 of 1980 decided on 13th
December, 1987.

(a) Civil Procedure Code (V of 19(18)-

---0. VI, R. 17 & S. 115--Specific Relief Act (I of 1877), Ss. 12 & 42--Amendment of
plaint- Declaratory suit filed on basis of agreement to sell--Plaint sought to be amended
during pendency of appeal by incorporating therein prayer for specific performance of
contract instead of declaration--Prayer for amendment rejected by Appellate Court--
Requirements for amendment--While dealing with prayer for amendment, Court has
discretion to allow amendment depending upon whether it considered such amendment to
be necessary for purpose of determining real questions in controversy--Where Court
came to conclusion that such amendment was necessary it would be duty bound to permit
such amendment--Limitation would not bar a Court from allowing amendment if
otherwise same was in accordance with provisions of 0. VI, R. 17, C.P.C.--When
amendment was found to be necessary for determining real questions in controversy,
same was allowed by High Court in revisional jurisdiction.

Mst. Ghulam Bibi and others . v Sarsa Khan P L D 1985 S C 345, Karamat Ali v
Muhammad Yousaf Haji P L D 1963 S C 191, Ahmad Din v Muhammad Shafi P L D
1971 S C 762 and Syed Akhlaq Hussain v . WA PD A 1977 S C M R 284 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

--S. 13--Transfer of Property Act (IV of 1882), S. 53-A--Agreement to sell between


parties in respect of house--Transferee put in possession of house on payment of certain
advance amount as per terms of agreement--Agreement to sell failing to materialize into
sale transaction--Owner/transferor filing rent proceedings against vendee--Ejectment of
transferee ordered by Rent Controller and finding upheld by Appellate Court--
Transferee/petitioner in eviction proceedings, held, was entitled to seek protection of his
possession under S.53-A transfer of Property Act, 1882--Ostensible transferor of
property was debarred from enforcing against transferee, any right in respect of property
of which he had taken possession other than a right expressly provided by terms of
contract--Dismissal of transferee's suit in respect of such property against which his
appeal was pending would not empower Rent Controller to decide eviction petition
without waiting for decision of such appeal.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

--S. 13--Transfer of Property Act (IV of 1882), S.53-A—Constitution of Pakistan


(1973), Art. 199--Constitutional jurisdiction, exercise of- Where transferee of property
under agreement to sell could seek protection of his possession under provisions of S.53-
A of Transfer of Property Act and he had put up such plea in defence of ejectment
proceedings, Rent Controller, held, had no jurisdiction to decide ejectment application
without waiting for the result of appeal filed by such transferee of property against
dismissal of his suit in which he had claimed his entitlement to such property as
transferee.

Ch. Mushtaq Ahmad Khan for Appellant.

Page No. 1 of 5
S. Samar Hussain Shah for Respondent.

Dates of hearing: 7th and 8th December, 1987.

JUDGMENT

This judgment will dispose of civil revision (C.R. No.402-D of 1980) filed by Sardar
Mohammad Anwar, petitioner, against the judgment of a learned Additional District
Judge of Lahore dated 18-3-1980 dismissing his appeal filed against the order of Mr.
Badar-uz-Zaman, Civil Judge, Lahore, dated 13-3-1975 dismissing his civil suit and also
against the said order of the learned Additional District Judge dismissing his application
for the amendment of the plaint and constitutional petition (Writ Petition No. 8739 of
1980) filed by Sardar Mohammad Anwar, petitioner, against a separate order of the same
learned Additional District Judge, Lahore, dated 18-3-1980, dismissing his appeal filed
against the order of Syed Shehbaz Hassan Gardezi, Rent Controller, Lahore, dated 7-1-
1978 ordering his eviction from Bungalow No.21-B, Gulbarg II, Lahore.

2. The facts leading up to both these petitions are that on 22-2-1972, Mian Asghar Ali,
respondent, executed an agreement for sale in favour of Sardar Mohammad A nwar,
petitioner, agreeing to sell his Bungalow No. 21-B, Gulberg II, Lahore, to the petitioner
for a consideration of Rupees one lac forty thousand (Rs.1,40,000). The agreement inter
alia recited that Rs.5,000 had been paid by the petitioner as earnest money, that a sum of
Rs.20,000 would be paid as advance to the respondent by 5th March, 1972, on which date
possession' of the bungalow would be given to the petitioner, that another sum of
Rs.15,000 would be paid as advance to the respondent by 5th April, 1972, that the
balance sum of Rs.1,00,000 would be paid to the respondent at the time of the execution
and registration of the sale-deed, that the sale-deed would be executed by the respondent
within six months from the date of execution of the agreement, that the respondent would
obtain the necessary clearance certificates showing that taxes and bills on the bungalow
had been paid, that the petitioner would have the right of paying, out of the balance sale
price, the sum of Rs.50,000 to the mortgagee Bank, which was ,due and payable by the
respondent to the- Bank on the mortgage of the bungalow, that the petitioner would
execute a rent note in favour of the respondent agreeing to pay rent for the said bungalow
at Rs.700 per mensem, so that if the petitioner did not fulfil the agreement within six
months, rent would be claimed at the said rate and if the petitioner delayed fulfilment
thereafter, at Rs.1,400 per mensem, and that if the petitioner defaulted in the fulfilment of
the contract, the earnest money of Rs.5,000 would be forfeited and the petitioner would
be duty bound to deliver back the possession of the bungalow to the respondent.

3. It is the case of both the parties that the possession of the bungalow was taken by the
petitioner on 22-2-1972, that advance of Rs.20,000 was paid by the petitioner to the
respondent before the 5th March, 1972, but as regards the advance of Rs.15,900 to be
paid by the petitioner to the respondent by 5th April, 1972, it is the case of the petitioner
that this amount was so paid, but the respondent only admits that a sum of Rs.10,000 was
paid.

4.. On 17-8-1972, the respondent served a notice on the petitioner to complete the
transaction, failing which, he would become liable to pay rent according to the terms of
the agreement. In the said notice it was mentioned that he had only paid Rs.30,000
towards the two advances, instead of Rs.35,000. On 21-8-1972, the petitioner replied
back to state that he was ready to complete the transaction and that he had paid the sum
of Rs.35,000 towards the two advances. On 23-8-1972, the respondent sent a notice to the
petitioner starting that the agreement stood terminated for default of performance on the
part of the petitioner and that earnest money of Rs.5,000 stood forfeited to him. On 30-4-
1974, the respondent served another notice on the petitioner reiterating the facts of the
earlier notice and stating that the amount of Rs.30,000 paid by the petitioner as advance
would stand adjusted against the rent at the rate of Rs.1,400 per mensem from 5-3-1972
to 30-4-1974.

5. On 23-5-1974, the respondent filed an eviction petition against the petitioner claiming
default in the payment of rent. He admitted that he had entered into an agreement for sale
with the petitioner in respect of the disputed bungalow for a sum of Rs.1,40,000 against

Page No. 2 of 5
which he had received Rs.5,000 towards earnest money and Rs.30,000 towards advance,
instead of Rs.35,000 which was to be paid, and after adjusting Rs.5,000 towards earnest
money forfeited in his favour Rs.4,200 as rent for the period 22-2-1972 to 22-8-1972 at
the rate of Rs.700 per mensem and the balance of Rs.29,400 as rent for the period 23-8-
1972 to 22-5-1974 at the rate of Rs.1,400 per mensem, a sum of Rs.3,600 was
outstanding as arrears of rent upto 22-5-1974. Accordingly; his ejectment was sought on
the ground of default in payment of this rent.

6. The petitioner denied the facts stated in the above petition. He denied the
relationship of landlord and tenant between himself and the respondent. He also objected
to the jurisdiction of the Rent Controller to decide the matter which related- to the terms
and conditions of agreement for sale dated 22-2-1972. He pleaded that he had become the
owner of the bungalow by operation of law. He also admitted the execution of the
agreement dated 22-2-1972 and did not dispute its terms and conditions, except assert
that the payment of the balance sum of Rs.1,00,000 was subject to the clearance of all the
dues by the respondent, including the redemption of the bungalow which was mortgaged
with a Bank. According to the petitioner, it was not done by the respondent and he had,
therefore, become entitled to get the sale-deed registered, after making payment of the
mortgage amount to the bank and clearing all other dues. The petitioner in his written
statement also admitted the receipt of notices - dated 17-8-1972 and 23-8-1972 given to
him by the respondent, but denied the receipt of notice dated 20-9-1972. Since the
petitioner considered himself the owner of the bungalow, due to breach of the terms of
the agreement by the respondent, he did not consider himself liable for the payment *of
rent to the respondent and denied the default in payment of rent.

7. In the meantime on 18-6-1974, the petitioner filed a suit seeking a declaration to the
effect that he was in possession of the disputed bungalow by virtue of the agreement for
sale dated 22-2-1972, because of the failure of the* respondent to get the sale-deed
registered which he was entitled to get completed and as a consequential relief he prayed
that the respondent be restrained from interfering with his possession over the disputed
bungalow -or from alienating the same to any third person.

8. The respondent contested the above civil suit filed by the petitioner. The respondent
pleaded that the suit was not correctly valued for the purposes of court-fees and
jurisdiction, that the correct value for the said purpose was 1,40,000 and that the suit was
not maintainable in its present form. The respondent denied the title of the petitioner over
the disputed property and asserted that he himself was its owner and that by committing
the breach of the agreement dated 22-2-1972, the petitioner according to its terms and
conditions had become a tenant under him.

9. The learned Civil Judge in the civil suit framed the following preliminary issues:-

(1) Whether the suit has been correctly valued for the purposes of court-fee and
jurisdiction? if so, what is the correct valuation? OP Parties.

(2) Whether the suit is not maintainable in its present form? OP Respondent.

10. On 13-3-1975, the learned Civil Judge dismissed the civil suit filed by the
petitioner. He decided issue No. 1 in favour of the petitioner and issue No.2 in favour of
the respondent.

11. On 31-5-1975, the petitioner preferred an appeal before the District Judge, Lahore;
against the above decision.

12. In the meantime, in the eviction proceedings filed by the respondent against the
petitioner, the parties were leading evidence on the following issues:-

(1) Whether the relationship of landlord and tenant exists between the parties?

(2) Whether the petition is not competent?

(3) Whether the petitioner has become owner in possession by operation of law?

Page No. 3 of 5
13. On 7-1-1978, the learned Rent ~ Controller, Lahore, decided all the three issues in
favour of the respondent and ordered the eviction of the petitioner.

14. Being aggrieved by the above decision, the petitioner preferred an appeal against the
same before the District Judge, Lahore.

15. Both the appeals of the petitioner were ultimately marked to Mr. Nusrat Hussain
Qureshi, Additional District Juke, Lahore, who heard the same and fixed 10-3-1980 for
orders. On the said date the petitioner moved an application under Order VI, Rule 17,
C.P.C. in the appeal filed by him against the judgment of the learned Civil Judge in the
declaratory suit, that he be permitted to amend the plaint, so as to convert the suit for
declaration and consequential relief into one for specific performance of the contract.
Accordingly, arguments were heard on this application. Ultimately on 18-3-1980, the said
learned Additional District Judge, Lahore, dismissed both the appeals filed by the
petitioner.

16. Being aggrieved by -both the above judgments, the petitioner filed Civil Revision
No.402-D of 1980 and constitutional petition (Writ Petition No.8739-80) against the
same, which are now before me for disposal.

17. I have heard the arguments of the learned counsel for the petitioner and the
respondent in both the civil revision and the constitutional petition and have perused the
record.

18. I will first take up Civil Revision No.402-D of 1980, which relates to the matter
arising out of the civil suit filed by the petitioner. The pivotal question that calls for
decision is whether the application f the petitioner for the amendment of his plaint should
have been allowed by the learned Additional District Judge. In this connection, learned
counsel for the petitioner has cited Mst. Ghulam Bibi and others vs. Sarsa Khan P L D
1985 S C 345. In this case the plaintiffs had filed a suit for declaration that they were the
owners in possession of the land in dispute and for injunction to restrain the defendants
from interfering with their possession. The frame of the suit was contested by the
defendants, on the basis that a civil suit for declaration and injunction was not
maintainable. Accordingly, an issue in that respect was framed, with others, by the trial
Court. The trial Court decided the issue regarding the frame of the suit against the
defendants and decreed the suit on the other issues. The defendants preferred an appeal
and succeeded on the issue regarding the form of the suit. In second appeal, an
application was filed by the plaintiffs to amend the plaint, but it was rejected on the
ground that it was a belated request and, if allowed, it would cause injustice and injury to
the oppositV party, particularly when an objection was taken in the written statement by
the defendants but no steps were taken to rectify the error. The plaintiffs then went up in
appeal in the Supreme Court, which allowed the amendment. In the said case the
Supreme Court approved the view of the learned Single Judge of the High Court that
generally delay alone in applying for amendment on expiry of period of limitation did not
constitute a ground for refusing amendment, but as regards the view of the learned Single
Judge that the plaintiffs were negligent or that the application for amendment was not
made bone fide, they came to the contrary view and allowed .the amendment. The
Supreme Court further observed, notwithstanding the question of negligence etc., that
delay alone in applying for the amendment was not a determining factor for accepting an
application in that behalf. It came to the conclusion that under Order VI, Rule 17, C.P.C.,
the Court had to determine two matters, first, whether the amendment was necessary for
the purposes of determining the real questions in controversy and second, whether to
allow the said application. It came to the conclusion that with respect to the first matter,
the Court had discretion to allow the amendment, depending upon whether it considered
the amendment to be necessary for the purposes of determining the real questions in
controvery, but that in respect of the second, once the Court came to the finding that the
amendment was necessary for the purposes .of determining the said questions, it became
the duty of the Court to permit the amendment. On the question whether the conversion
of the suit from one for declaration and consequential relief to - that for specific
performance was one for the purposes of determining the real questions in contrdvery, the
Supreme Court answered the question in the affirmative. As regards the second, it

Page No. 4 of 5
automatically stood answered affirmatively. This ruling is on all fours with the present
case. Even otherwise, the Supreme Court in a number of cases has held that limitation
does not bar a Court from allowing an amendment, if otherwise it is in accordance with
the provisions of Order VI, Rule 17, C.P.C.. see Karamat Ali v. Muhammad Yousaf Haji P
L D 1963 S C 191, Ahmad Din v. Mohammad Shafi P L D 1971 S C 762 and Syed
Akhlaq Hussain v. WAPDA 1977 S C M R 284. The amendment was necessary in the
instant case for determining the real questions in controversy between the parties and I
would hold accordingly.

19. This revision petition is, therefore, accepted and the decisionlg of the learned
Additional District Judge dated 18-3-1980 passed in Civil Appeal No.122 of 1975, both
in the main case and on the petition for amendment of the plaint, is set aside. The file of
the case is remanded to the learned Civil Judge, who shall permit the petitioner to amend
his plaint in accordance with the petition for amendment filed by him and to pay the
necessary deficient. court-fees on the amended plaint, where after the learned Civil Judge
shall proceed with the suit from that point onward. Since the suit is a very old one, the
Civil Judge shall take special steps to dispose of the same within six months.

20. I now take up the constitutional petition (Writ Petition No.8739 of 1980) filed by the
petitioner. It is an admitted position that the petitioner was inducted into the disputed
property under the terms of the Agreement for Sale dated 22-2-1972. In the eviction
petition filed by the respondent, the petitioner was, therefore, entitled to seek protection
of his possession under section 53-A of the Transfer of Property Act, 1882. If any
authority is required in this respect, Muhammad Idrees v. Additional District Judge,
Lahore 1986 SCMR 988 may be cited. Under the said section 53-A, the respondent, as]
the ostensible transferor of the disputed property, was debarred from enforcing against
the petitioner, who was the ostensible transferee, any right in respect of the property of
which the petitioner has taken possession, other than a right expressly provided by the
agreement for sale. Since the petitioner's possession was protected, the Rent Controller
had no jurisdiction to secure the possession for the respondent in any manner. The "right
expressly provided" to the respondent by the terms of the agreement for sale was to claim
rent from the petitioner, if the petitioner delayed the execution of the agreement. The
right to forfeit the earnest money and to claim back the property were only available in
the event of a breach of the agreement. The "right expressly provided by the terms of the
contract", as stated in section 53-A of the Transfer of Property Act; obviously refers to
those rights provided in the contract which are available, so long as the contract is alive
and has not come to an end. Where there is a breach, the law itself provides the necessary
remedies, apart from those which may specially be provided in the contract. The
respondent under para 5 of the agreement for sale was entitled inter alia to receive rents at
particular rates for the delayed period. This was a right expressly provided in the contract,
which he could have claimed. The right to secure possession of the property was only'
available on the breach of the agreement. Through the media of the eviction petition, the
respondent could not have claimed eviction as a 'right expressly provided by the terms of
the contract' Even otherwise, when the Rent Controller passed his order of eviction
against the petitioner on 7-1-1978, the appeal of the petitioner against the dismissal of his
civil suit was pending before the Additional District Judge at Lahore. The Rent Controller
should have waited for the decision. Had he done so and passed the final order after the
petitioner's appeal against the dismissal of the civil suit had been dismissed, the Rent
Controller may have found some justification to say that the petitioner had lost the
protection of his possession, by the dismissal of his appeal. I do not think that the Rent
Controller was justified in deciding the case, without waiting for the decisions of the
appeal filed by the petitioner against the dismissal of his civil suit for declaration and
injunction. The decision of both the lower Courts is, therefore, illegal and deserve to be
quashed.

30. The writ petition is accepted and the judgment of the learned Additional District
Judge, Lahore, dated 18-3-1980 and that of the Rent Controller, Lahore, dated 7-1-1978
are set aside. The eviction petition is remanded to the Rent Controller to await the
decision in the civil suit, before delivering the judgment afresh on the respondent's
petition.

A . A . / M-495/ L Petition accepted

Page No. 5 of 5
2001 S C M R 345

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Late Mst MAJEEDAN through Legal Heirs and another---Petitioners

versus

Late MUHAMMAD NASEEM through Legal Heirs and another---Respondents

Civil Petition No.566-K of 1999, decided on 28th July, 2000.

(On Appeal from the order of the High Court of Sindh, Karachi, dated 10-9-1999 passed
in Civil Revision Application No. l of 1999).

(a) Specific Relief Act (I of 1877)----

----S. 9---Suit for recovery of possession---Essentials to be proved---Raising question of


title in such suit---Scope---Suit under S. 9, Specific Relief Act 1877 is entirely a different
kind of action---Provision of S. 9, Specific Relief Act, 1877 gives a special privilege to
persons in possession who take action promptly on their dispossession of immovable
property---Where persons are dispossessed, S. 9 of Specific Relief Act, 1877, entitles
them to succeed simply by proving that they were in possession; that they had been
dispossessed by the defendant: that the dispossession is not in accordance with law, and
that the dispossession had taken place within six months of the suit---No question of title
either of the plaintiff or of defendant can be raised or gone into such cases.

1989 CLC 318; 1987 Dhaka LR 8; 1985 CLC 2309; 1983 CLC 507; 1981 CLC 654; PLD
1970 Lah. 560; 18 DLR; PLD 1969 Kar. 78; AIR 1959 All. 1; AIR 1956 Hyd. 170 and
AIR 1927 All. 669 ref.

(b) Specific Relief Act (I of 1877)----

----S. 9---Suit for recovery of possession---Question of title qua suit property---Title is


not material in a suit falling under S.9 of Specific Relief Act, 1877---Any person who has
been dispossessed otherwise than due course of law, without pleading or proving title,
can seek to be re-inducted into possession even though such a relief has been sought
against true owner of the property.

Sobha v. Ram Phal AIR 1957 All. 394; Azam Khan v. The State of Pakistan and another
PLD 1957 Kar. 892; Siddiq Ahmed v. Estate Officer and another PLD 1957 Kar. 887;
Riaz and another v. Razi Muhammad PLD 1979 Kar. 227 and Supercon Ltd. v. Eastern
Construction Ltd. 1987 CLC 1566 ref.

(c) Specific Relief Act (I of 1877)----

----S. 9---Civil Procedure Code (V of 1908), S.115---Suit for recovery of possession---


Order or decree of Trial Court---Remedy---Revision lies to High Court under S. 115,
C.P.C. in respect of order or decree made in a suit under S.9 of Specific Relief Act,
1877---Where in such a suit an aggrieved party can institute a suit on the basis of title,
interference in revision would be generally declined even though S. 9 of Specific Relief
Act, 1877 does not exclude the remedy by way of revision altogether.

1983 PSC 158; PLD 1964 Pesh. 157=16 DLR (W.P.) 164; PLD 1950 Pesh. 35; PLD 1952
Dacca 89; 1991 MLD 1046; PLD 1952 Dacca 89; AIR 1953 Assam 158; 72 Mad. L.W.
361; PLR 1951 Dacca 140; AIR 1942 Oudh 179; AIR 1957 Hyd. 4; AIR 1949 Nag. 422;
AIR 1926 Mad. 290; AIR 1933 Mad. 609; AIR 1932 Oudh 39; AIR 1937 Oudh 183; AIR
1934 All. 541 and 1989 CLC 219 ref.

Page No. 1 of 5
(d) Specific Relief Act (I of 1877)---

-----S.9---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art.


185(3)---Suit for recovery of possession--Dispossession by force without due course of
law---Plaintiff was dispossessed some 27 years back and the, matter was pending before
the Courts on hyper technical issues---Trial Court 'decreed the suit and revision before
High Court was dismissed---Validity---No illegality or infirmity had been committed
either by the Trial Court or Revisional Court calling for interference ---Interference 'in' a
revision in a particular case was justified where the case might have been disposed of on
an obvious misapprehension as to the legal position, or where there was some defect of
jurisdiction--- Where, however, no exceptional circumstances were brought out and the
only contention raised was that the finding on a question of fact was not based on
adequate evidence or was erroneous, interference would not be justified---Converting
revision petition into appeal would be against the spirit of S. 9 of Specific Relief Act,
1877, as the same was expressly disallowed by law.

AIR 1953 Assam 158; 1989 CLC 219 and 17 C WN 501 ref.

Khalil-ur-Rehman, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Syed Sarfraz Ahmed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-
on-Record (absent) for Respondents.

Date of hearing: 27th July, 2000.

ORDER

JAVED IQBAL, J.----This petition for leave to appeal is directed against the order of
learned Single Judge in the High Court of Sindh at Karachi, dated 10-9-1999 dismissing
Revision Petition bearing No. l of 1999 in limine.

2. Briefly stated the facts of the case are that respondents firm a suit on 8-5-1973 against
the petitioners for recovery of possession of immovable property under section 9 of the
Specific Relief Act, 1877 and possession of movable property or compensation in sum of
Rs.10.000 'in lieu thereof. The respondents filed amended plaint on 24-1-1980 with the
averment that respondent No. 1 was allotted a plot measuring 460 sq. yds in the
Commercial Area, of Liquatabad, Karachi by the Deputy Refugee Commissioner,
Karachi vide order No.17-3/DC-53/8190, dated 17-4-1953 and physical possession was
delivered by the Refugee Welfare Officer, Karachi. It is further averred that respondent
No.2 who is brother-in-law of the respondent No. l was allowed by him to establish
business in the said plot with the name and style of M/s. Khursheed Electric Company
and M/s. Associated Traders. The petitioners dispossessed the respondents from the said
plot by use of force and on gunpoint. The respondents consequently filed a suit under
section 9 of the Specific Relief Act. The petitioners contested the suit by filing written
statement and strenuously denied the claim of respondents by raising various legal and
factual objections including that the plot in question was allotted in their favour and
petitioner No. l is a lessee from K.M.C. who has not been impleaded as a party. It is
further stated that the Refugee Welfare Officer allotted this plot to petitioner No. l in 1955
and it was not allotted permanently in favour of respondents and subsequent allotment in
favour of petitioners amounts to cancellation of allotment, if any, made earlier in favour
of the respondents.

3. After framing of issues the parties led evidence to substantiate their respective claims
and on conclusion of trial the suit was decreed by learned Senior Civil Judge (II), Karachi
Central vide judgment/decree, dated 17-12-1998. Being aggrieved the petitioners filed a
Revision Petition which has been dismissed in limine by learned Single Judge vide
impugned order.

4. It is mainly contended by Mr. Khalil-ur-Rehman, Advocate Supreme Court that the


learned trial Court had exercised the jurisdiction not vested in it and the suit was not
maintainable being outside the purview of section 9 of the Specific Relief Act which
aspect of the matter remained unattended and resulted in serious miscarriage of justice. It

Page No. 2 of 5
is also contended that after the death of Muhammad Naseem (respondent No. l) the suit
could not be continued by his brother and sisters. It is urged with vehemence that the
learned trial Court has not appreciated the evidence which has come on record in its true
perspective resulting in serious prejudice. It is argued that Muhammad Naseem used
forged and fabricated document and thus played fraud upon the Court by showing an
entry of possession on the reverse of the allotment order and therefore, he was not
entitled to get the possession as the plot in question was never allotted in his favour by
the competent authority.

5. Syed Sarfaraz Ahmed, Advocate Supreme Court appeared for respondents and
strenuously controverted the view-point as canvassed by Mr. Khalh-ur-Rehman on behalf
of petitioners by arguing that the petitioners have failed to substantiate their claim by
adducing any worthy of credence oral or written evidence. It is further contended that the
plot in question was got allotted on the basis of forged and fabricated allotment order
which has been proved on the basis of documentary evidence as led by the respondents
and correctly appreciated by the learned trial Court. He also pointed out that the question
of fact cannot be agitated which has already been decided by the leaned trial Court on the
basis of cogent arid concrete evidence. It is also contended that no illegality or
irregularity whatsoever has been committed either by the trial Court or revisional Court
calling for any interference by this Court. He has also drawn our attention to the
chequered history of the case and pointed out that after lapse of about three decades the
controversy is yet to be determined finally.

6. We have carefully examined the respective contentions as agitated on behalf of


petitioner and respondents in the light of relevant provisions of law and record of the
case. We have minutely perused the judgment passed by learned trial Court on 17-12-
1998 and impugned order. The entire evidence has been thrashed out with the eminent
assistance of learned counsel of the parties. We are not persuaded to agree with the main
contention as agitated on behalf of the petitioners that suit was not maintainable under
section 9 of the Specific Relief Act as twofold relief was sought by the respondents for
the reasons that at later stage the suit was got amended with permission of trial Court and
only possession was prayed for. It is worth mentioning here that "A suit under section 9
of the Specific Relief Act is however, and entirely different kind of action. That section
gives a specific privilege to person in possession who takes action promptly. In case they
are dispossessed, it entitles them to succeed simply by proving (1) that they were in
possession, (2) that they have been dispossessed by the defendant, (3) that the
dispossession is not in accordance with law, and (4) that the dispossession took place
with six months of the suit. No question of title either of the plaintiff or of the defendant
can be raised or gone into in that case". (1989 CLC 318 (DB) + 1987 Dhaka LR 8 + 1985
CLC 2309 + 1983 CLC 507 + 1981 CLC 654 + PLD 1970 Lah. 560 + 18 DLR (DB) +
PLD 1969 Kar. 78 + AIR 1959 All. 1 (DB) + AIR 1956 Hyd. 170 + AIR 1927 All. 669
(DB). All that is necessary is that it must be proved that the plaintiff was in possession,
that he was dispossessed and that the suit has been brought within 6 months from the date
of the dispossession. It is immaterial if the plaintiff was in possession and that such
possession was without title and therefore, the contention as agitated on behalf of the
petitioners that possession was obtained on the basis of forged allotment order cannot be
considered. It is well-established legal position that "Title was not material in a suit
falling under section 9 and any person who had been dispossessed, otherwise than in due
course of law, could, without pleading or proving title, seek to be re-inducted into
possession, even though such a relief was sought against true owner of property himself".
(Sobha v. Ram Phal, AIR 1957 All. 394; Azam Khan v. The State of Pakistan and another,
PLD 1957 Kar. 892; Siddiq Ahmed v . Estate Officer and another PLD 1957 Kar. 887;
Riaz and another v. Razi Muhammad PLD 1979 Kar. 227 and Supercon Ltd. v. Eastern
Construction Ltd., 1987 CLC 1566 ref.) Reference may here be made to the case
reported, as Ganesh and another v. Dasso and another (AIR 1927 All. 669), where while
construing the scope of section 9 of the Specific Relief Act it was observed:-----

"In suits under section 9, Specific Relief Act, the Court does not try in question of title
and, therefore, the defendant cannot resist the plaintiff's suit on the ground of his being
the rightful owner. No matter how good the title of the dispossession, the person
previously in possession is entitled to a decree for possession in suit under section 9,

Page No. 3 of 5
Specific Relief Act, provided he brings the suit within six months of the date of his
dispossession."

Having observed as above the learned Court held:--

"This is not the case in suits for possession brought more than six months after the
dispossession of the plaintiff. In such suits Courts have to try, question of title and,
therefore, it is open to a defendant notwithstanding the previous possession of the
plaintiff to resist the claim for possession by setting up and proving a title in himself. In
other words, title is no defence in a suit under section 9, Specific Relief Act, but affords a
conclusive defence in other suit". (Messrs A.R. Muhammad Siddique v. The Saife High
School Board (1983 CLC 507).

In the case of Fazal Muhammad v. Muhammad Vsman (PLD 1970 Lah. 560) while
discussing a similar proposition the learned High Court of Lahore observed that in suits
under section 9 of the Specific Relief Act the only question to be seen is whether the
plaintiff was in possession when he was dispossessed and that the Court does not decide
the question of title and all that it is concerned with is as to whether possession has been
disturbed without any authority of law and in disregard of it.

7. We have also dilated upon the question as to whether appeal or revision is competent in
such-like cases? The impugned order passed by learned Single Judge seems somewhat
contradictory on this point. It is worth-mentioning here at this juncture that section 9
itself provides: "That no appeal shall lie from any order or decree passed in any suit
instituted under this section, nor shall any review of any such order or decree be
allowed". It is well settled by now that "A revision lies to the High Court under section
115 of the Civil Procedure Code in respect of an order or decree made in a suit under
section 9 of the Specific Relief Act (1983 PSC 158 + PLD 1964 Pesh. 157 + 16 DLR
(W.P.) 164 + PLD 1950 Pesh. 35 + PLD 1952 Dacca 89. But as in a suit under section 9
an aggrieved party institute a suit on the basis of title, interference in revision has been
generally declined even though section 9 does not exclude the remedy by way of revision
altogether. (1991 MLD 1046 + PLD 1952 Dacca 89 4 AIR 1953 Assam 158 + 72 Mad.
L.W. 361). Every case has to be decided on its own facts (PLD 1952 Dacca 89 + PLR
1951 Dacca 140) and interference in revision is justified in cases of exceptional nature
(AIR 1942 Oudh 179 + AIR 1957 Hyd. 4). (Where the balance of convenience in a case
is not in favour of driving the plaintiff to a regular suit, the High Court would interfere in
revision) + AIR 1949 Nag. 422 + AIR 1926 Mad. 290 + AIR 1933 Mad. 609 + AIR 1932
Oudh 39 + AIR 1937 Oudh. 183 + AIR 1934 All. 541) as when rights of the aggrieved
party were so clear that it may not be equitable to force him to another suit or the case
had been disposed of on an obvious misapprehension as to the true legal position or
where there was some defect of jurisdiction in the proceedings. (1989 CLC 219).

8. We cannot endorse the view of Mr. Khalil-ur-Rehman, Advocate Supreme Court that
the evidence which has come on record has not been appreciated in its true perspective
which resulted in serious miscarriage of justice because the scrutiny of entire evidence
would lead clearly, indubitably and irresistibly to the inference that respondents have
proved that they were in possession of the plot in question and were dispossessed by the
petitioners otherwise than in due course of law. It has-been observed with grave concern
that matter has been lingering on for one or the other reasons for the last 27 years on
hyper technical issues and the petitioners have succeeded in frustrating the object of
various judicial pronouncements which aspect of the matter has taken care of by learned
trial Court by whom it was observed as follows:--

"Thus in the light of 12 witnesses statement, confirmation of Muhammad Nasim


allotment and possession by the allotting authority and his two officers of Liaquatabad
and about 150 documents produced by him abundantly proved that Muhammad Nasim
was real. allottee and he was in possession of the suit premises 'till 3-4-1974, when he
was dispossessed by Anwar Hussain. Defendant No.2 and his associates on gun point
F.I.R., dated 3-4-1973 is also a solid proof of his dispossession on gun point.

Judgment and decree, dated 13-1-1983 and 22-1-1983 respectively in Appeal No.232 of
1980 of the VIIth Additional District Judge, Karachi, declaring allotment and lease as

Page No. 4 of 5
bogus and fraudulent of defendant No. l Supreme Court of Pakistan's dismissal of
defendant's Review Petition No.20-K of 1993, dated 23-6-1993.

Cancellation of bogus and fraudulent lease deed of Mst. Majeedan by the K.M.C. of the
suit plot on 26-1-1994 vide letter No.AD/Vp 1610 of 1994.

High Court of Sindh's dismissal order in Suit No.689 of 1993, dated 28-3-1996 of the
defendants for declaration and injunction of the suit property.

Dismissal of High Court's Appeal No.43 of 1996, dated 12-2-1998 of the defendants by
Division Bench of the High Court regarding Declaration and Injunction of the suit
property prove the facts noted above, that Muhammad Nasim was allottee of the suit
property and he was in peaceful possession the same after construction of boundary
walls, three rooms and one shop on the suit premises till 3-4-1973, when he was
dispossessed by the defendant No.2 alongwith notorious Gundas of Lalukhet on
gunpoint".

In the light of foregoing discussion, we are, of the considered opinion that no illegality or
infirmity whatsoever has been committed either by the trial or revisional Court calling for
interference. It is worth mentioning that interference in a revision in a particular case is
justified if the case may have been disposed of on an obvious, misapprehension as to the
legal position, or where there is some defect of jurisdiction. But where no exceptional
circumstances are brought out and the only contention raised is that the finding on a
question of fact is not based on adequate evidence or is erroneous, interference would not
be justified. It would be going against the spirit of section 9 of the Specific Relief Act and
in effect would be to convert a petition of revision into an appeal which the law expressly
disallows. (1989 CLC 219 + AIR 1953 Assam 158 + 17 Cal. WN 501 (DB)]. The
petitioners have not approached this Court with clean hands and accordingly the petition
being devoid of merit is dismissed. The vacant possession of the plot in question be
handed over to the respondent forthwith

Q.M.H/M.A.K./M-184/5 Petition dismissed.

Page No. 5 of 5
1977 S C M R 284

Present : Anwarul Haq, Qaisar Khan and Muhammad Haleem, JJ

Syed AKHLAQUE HUSSAIN AND ANOTHER-Appellants

Versus

WATER AND POWER DEVELOPMENT AUTHORITY LAHORE-Respondent

Civil Appeal No. 25 of 1976, decided on 23rd February 1977.

(On appeal from the judgment and order of the Lahore High Court: made on 25-2-74 in
Civil Review No. 737 of 1973).

Civil Procedure Code (V of 1908)---

O. VI, r. 17-Pleadings-Amendment of-Amendment necessary for determining real


question in controversy between parties Leave to amend pleadings to be allowed liberally
except when amendment amounts to setting up of an altogether different cause of action.-
[Pleadings].

There is indeed a long line of judicial authorities laying down that amendment should be
allowed liberally except when it causes injury to the opposite side.

All rules of Court are nothing but provisions intended to secure the proper administration
of justice, and it is, therefore, essential that they should be made to serve and be
subordinate to that purpose, so that full powers of amend anent must be enjoyed and
should always be liberally exercise, but nonetheless no power has been given to enable
one distinct cause of action to be substituted for another, nor to change by amendment,
the subject matter of the suit.

The question whether the allegations made, in support of the amendment are true or false,
cannot be decided summarily at the time of considering the application made under rule
17 of Order VI of the Code of Civil Procedure, unless of course the matter is patent on
the face of the record.

The real question in deciding as to the propriety of allowing an amendment of the


pleading is, to use the words employed in the relevant rule itself, whether the amendment
is necessary for the purpose of determining the real question in controversy between the
parties. If so, then leave to amend ought to be allowed liberally, provided of case that it
does not have the effect of setting up an altogether different cause of action.

Appellant in parson.

Respondent: Ex Parte.

Date of hearing. 23rd February 1977.

JUDGMENT

ANWARUL HAQ. J. This appeal, by the leave of the Court, is directed against an order
made by a learned Judge of the Lahore High Court on 25-2-1974, by which a revision
petition instituted by the respondent, namely, the Water and Power Development
Authority (hereinafter referred to as the WAPDA), was accepted, and an order made by
the trial Court on 28-9-73 allowing an amendment in the appellant's plaint in a suit for
damages to the tune of Rs. 96,000, was set aside.

The appellants had filed a suit on the 16th of June 197.1 against a firm by the name of
Common wealth Associate (Inc.) for recovery of Rs 96,000 as damages caused to the
appellant’s residential property which had been let out to this firth at the rate of Rs. 2500
per month. An application was also made by the plaintiff-appellants for attachment before

Page No. 1 of 3
judgment of certain sums of money which were said to be payable by 'NAPDA to the said
firm. It appears that on learning that the WAPDA may not be holding sufficient funds in
this behalf the appellants made an application on the 31st of August 1973 praying that the
WAPDA be impleaded as defendant No. 2 in the suit and certain paragraphs be allowed to
be added in the plaint to the effect that the contract for lease entered into by the aforesaid
firm was also on behalf of WAPDA, and that possession of the house fad been jointly
delivered to the firm and the WAPDA. A further averment was made that WAPDA had
also been paying part of the rent of the premises.

Although a notice of this application was given to WAPDA, yet it did not choose to
contest the same before the trial Court. The application was, however, opposed by the
original defendant, namely Messrs Commonwealth Associate. It was, nevertheless,
allowed by the trial Court by its order dated the 28th of September 1973, as already
stated.

In the High Court the main ground that has found favour with the learned Judge for
rejecting the desired amendment in the plaint is that the application was rot made by the
appellants in a bona fide manner. He has observed that "not only did the plaintiffs allege
that the defendant No. 3 was the only tenant of the property and the only person liable to
pay the tent and damages, but all the documentary evidence on the record also goes to
prove this assertion. There is no mention of the petitioner (i.e. WAPDA) in either the
pleadings or in the documents attached to it." The learned Judge has further stated that the
main reason which prompted the present appellants to move their application for
amendment of the plaint was the fact that they suspected that the officers of WAPDA
were trying to unduly favour tide original defendant to the plaintiffs' detriment. Finally,
the learned Judge rejected tie explanation given by the appellants for not impleading the
WAPDA in the first instance.

It is submitted by Mr. Akhlaque Hussain, who has argued the case in person, that the
application for the amendment of the plaint was made promptly within about two months
of the filing of the suit, and at a stage when the defendant had not yet appeared before the
trial Court, and that lit was not opposed by the WAPDA in spite of the notice of the same.
He contends that there was no material whatsoever before the learned Judge in the High
Court to record the finding that the amendment was not sought for in a bona fide manner,
and that in any care the question whether WAPDA was indeed jointly liable with the firm,
Commonwealth Associate, for the rent and damages caused to the property was a
question of fact still to be decided by the trial Court by taking evidence of the parties. He
contends that there is overwhelming authority for the proposition that an amendment in
the plaint should be allowed liberally except when it causes an injury to the opposite-
party or it seeks to entirely change the nature of the cause of action, for which a new suit
would be hit by limitation. Finally, on the question of bona fides of impleading the VN
APDA as a defendant in the suit, he states that in subsequent litigation between the partite
in the Court of the Rent Controller a final finding has now been recorded to the effect that
relationship of landlord and tenant exists between the appellants and WAFDA, and that
the WAPDA authorities have even handed over vacant possession of the disputed
premises to the appellants in pursuance of an order of ejectment made by the Rent
Controller.

We consider that there is merit in the submissions made on behalf of the appellants. There
is indeed a long; line of judicial authorities laying down that amendment should be
allowed liberally except when it caused injury to the opposite side. In support of this
proposition, one may refer to Jharia Coal Co. of Dhanba Bihar v. Diwan Chard Co. of
Delhi (AIR 1921 Lah.367), Ma. Shwe Mya v. Moung Mo Nnaung (AIR 1922 P C 240),
Shams-ud-Din v. Den v. Dos (A I R 1923 Lah. 50), Aispa v. Mr. Chino (A I R 1923 Lab.
530). Babulall Ckouk koni v. Hariprosad Roy (A I R 1944 Cal. 72) and Bashir Ahmad v.
Qaiser Ali (P L D 1973 S C 507).

As observed by their Lordships of the Judicial Committee, all rules of Court are nothing
but provisions intended to secure the proper administration of justice, and it is, therefore,
essential that they should be made to serve and be subordinate to that purpose, so that full
powers of amendment must be enjoyed and should always be liberally exercised, but

Page No. 2 of 3
nonetheless no power has been given to enable one distinct cause of action to be
substituted for another, nor to change, by amendment, the subject-matter of the suit.

In the case cited by Mr. Akhlaque Hussain from the Calcutta jurisdiction, it was observed
that of course, in one sense an application for amendment based on false allegations
couldn’t be bona fide. That, however, is a matter for investigation at the trial itself".
These observation: tend to show that the question whether allegations made in support of
the amendment are true or false, cannot be decided summarily at the time of considering
the application made under rule 17 of Order VI of the Code of Civil Procedure, unless of
course the matter is patent on the face of the record. More or less the similar observations
were made in M. K. Krishna Rao v. Sri Gangadeswarar Temple (A I R 1949 Mad. 433)
and pathikonda Gopala Rao v. Nagiri Pedda Kitamma (A I R 1955 Andh. 138).

It will be seen that the real question in deciding as to the propriety of allowing an
amendment of the pleading is, to use the words employed in the relevant rule itself,
whether the amendment is necessary for the purpose of determining the real question in
controversy between the parties. If so then leave to amend ought to be allowed liberally,
provided of course that it does not have the effect of setting up an altogether different
cause of action. Now, in the present case, the appellants had asserted that WAPDA was
also jointly liable for the rent of the property as well as for the damage caused thereto.
Even if they had not originally said so in the plaint filed against the Commonwealth
Associate, the fact remains that these were allegations or averments which needed to be
proved by evidence at the trial. There has accordingly hardly any occasion for the High
Court to hold that the application had not been made in a bona fide manner. The bona
fides of the appellants now stand proved in any case by the course of litigation in the
Court of the Rent Controller. We Lave already stated that a din al order has since been
made directing the ejectment of WAPDA on the ground that the relationship of landlord
and tenant existed between the parties. It would appear, therefore, that the learned Judge
in the High Court was in error in setting aside the order of the learned trial Judge
allowing the amendment prayed for by the appellants.

As a result, ac would accept this appeal, set ague the order of the High Court and restore
that of the trial Court. Costs will abide by the final event, Appeal accepted.

Appeal accepted.

Page No. 3 of 3
1980 C L C 1866

[Lahore]

Before Muhammad Hassan Sindher, J

Syed NAJMUL HASSAN AND OTHERS-Appellants

versus

SHAH SAWAR AND OTHERS --Respondents

First Appeal from Original Order No. 103 of 1973, decided on 26th February, 1980.

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

O. VI, r. 17-Pleadings-Amendment-Power of Court to allow a party to alter or amend


pleadings at any stage of proceedings in order to determine real question in controversy,
held, to be exercised liberally to advance interests of justice.---[Pleadings].

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

O. VI, r. 17-Pleadings-Amendment-Amendment in pleadings not to be refused if


occasioning no harm to opposite-party and when sufficiently compensatable by costs,
party acting in good faith, and amendment not taking away a legal right accrued by lapse
of time and not changing character of suit.--[Pleadings]..

(e) Civil Procedure Code (V of 190R)-

- O. VI, r. 17-Pleadings-Amendment-Leave to amend pleadings To be refused where


amendment introduces a totally different, new and inconsistent case or substitutes a now
cause of action for original one.-[Pleadings].

Rana v. Jaikaur 35 P L R 69; Karam Dad and others v. Muhammad Bibs and others A 1 R
1942 Lah. 1; Vedachala Chettiar v. Ameena Bi Ammal and others A I R 1944 Mad. 121;
Gulab and another v. Fazal Ellahi P L D 1955 Lah. 26; Babu Khan v. Municipal
Committee, Murree 1969 S C M R 29 and Bashir Ahmed v. Qaiser Ali P L D 1973 S C
507.

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

O. VI, r. 17-Pleadings--Amendment--Defeated litigant, held, cannot be permitted to evade


defeat by devising a new case.-Amendment].

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

O. VI, r. 17---Pleadings---Amendment---Court of appeal, held, not justified in exposing a


party, having obtained decree, to brunt of a new attack.-[Pleadings].

Mst. Inayat Bibi v. Abdul Aziz arid others P L D 1978 Lah. 1435 and M. G. Hassan and 4
others v. Sheikh Riaz-ul-Haq and S others 1979 S C M R 15 ref.

(f) Civil Procedure Code (V of 1908)—

- O. VI, r. 17-Pleadings---Amendnment-Amendment in pleadings not taking away a legal


right or changing complexion of suit, held, can be allowed in suitable cases -----
[Pleadings].

Bashir Ahmed v. Qaiser Ali P L D 1973 S C 507 and M. G. Hassatt Riazul Haq 1979 S C
M R 15 ref.

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

Page No. 1 of 6
O. Vl, r. 17---Pleadings-Amendment--Order allowing amendment in plaint having effect
of setting up a totally new and different case, held, not justified in law:-[Pleadings].

Mian Munawar Hussain for Appellants.

Raja Muhammad Anwer for Respondents.

Date of hearing: 26th February, 1980.

JUDGMENT

This first appeal is brought from the order of learned Additional District Judge,
Rawalpindi, allowing the respondents (plaintiffs in the suit) to amend the plaint under
Order VI, rule 17 read with section 107, Civil Procedure Code and consequently setting
aside summarily the decree impugned in appeal before him for enquiry de novo in the
case in the light of new plea to be added in the plaint.

2. The dispute in this case concerns succession to the landed property of Syed Ahmed
Shah and Akhtar Shah of village Jhangi Syedan, Tehsil and District Rawalpindi, both of
whom died in distant past during British rule in the sub-continent and were admittedly
governed by customary rule of succession. Respondents numbering 12 in all are the lenial
descendants of Ameer Shah, a real brother of Gulab Shah grandfather of Ahmed Shah and
great grandfather of Akhtar Shah. The respondents claimed 11/16th share in the property
of the two deceased on the assertions that lands left by Ahmed Shah were on his death
mutated in the name of his widow Mst. Noor Khatoon (defendant No. 1) as limited owner
and his son Fateh Haider Shah in equal shares. The latter also died before Independence
(1947) and the land falling to his share devolved on his widow Mst. Ghulam Fatima
(defendant 2) by way of limited estate. Akhtar Shah died issueless and one-half share in
the lard left by him was again transferred in the names of the said ladies. The plaint,
however, does not throw any light on the disposal of the remaining land of Akhtar Shah.
It appears that the remainder half of the land of Akhtar Shah deceased was mutated in the
name of his widow Mst. Sarwar Bibi which was also on her death transferred in the name
of Mst. Noor Khatoon and Mst. Ghulam Fatima (defendants 1/2) both of whom were
daughters of Lal Shah and real paternal aunts of Akhtar Shah. The respondents also said
in the pint that Ahmed Shah, Fateh Haider Shah and Akhtar Shah were Sunnis by faith.
The respondents were the sole heirs of Akhtar Shah deceased. Mst. Ghulam Fatima and
Mst. Jannat (defendants 2/7) were entitled to one-fourth and one-half share in the
inheritance of Fateh Haider Shah as widow and sister respectively of the deceased. Mst.
Ghulam Fatima had transferred her share in the land by way of gift in favour of Najam-
ul-Hassan (defendant 3) to which she had succeeded as limited owner. Najam-ul-Hassan
had in his turn sold away the land in favour of Mahmood War, Zawar Shah and Azadar
Shah (defendants 4 to 6). Alienation in favour of Najam-ul-Hassan and the further
transfers made by him in favour of defendants No. 4 to 6 were without authority and
ineffectual against reversionary rights of the respondents. Limited estates of female heirs
stood terminated by Act No. V of 1962. The respondents were, therefore, entitled to
decree for their share (11/16) in the land in suits. A substantial portion of the land is said
to have been acquired by the Government for a public purpose and compensation in lieu
thereof was determined by learned Senior Civil Judge, Rawalpindi. The respondents also
claimed payment to the extent of their share in the amount of compensation.

3. Mst. Noor Khatoon, Mst. Ghulam Fatima, Najam-ul-Hassan and Zawar Hussain Shah
(defendants 1 to 3 and 5) filed joint written statement while Mst. Jannat Bibi who was
impleaded as daughter of Ahmed Shah and sister of Fateh Haider Shah (defendant No. 7)
filed separate written statement. The defendants-appellants refuting the assertions of the
respondent excepting the one that Ahmed Shah and Akhtar Shah were governed by
custom maintained that both the deceased professed Shia faith and Fateh Haider Shah had
pre-deceased Ahmed Shah. The lands left by the latter were mutated in the names of his
widow Mst. Noor Khatoon. Mst. Ghulam Fatima widow of Fateh Haider Shah and Mst.
Jannat Bibi daughter of Ahmed Shah deceased in equal shares. On termination of limited
estates under the Act referred to above the land wa4 rightly transferred in their favour to
the exclusion of the respondents under Shia Law of inheritance. Mst. Jannat defendant

Page No. 2 of 6
Nos. 7 in the suit out of which this appeal has arisen had also filed a separate suit (207 of
1967), against Mst. Noor Khatoon, Mst. Ghulam Fatima and Najam-u1-Hassan and the
three transferees under the latter (defendants Nos. 1 to 6 in this case) that her father
Ahmed Shah the last male-holder of the land was Shia by faith and that with the
termination of life estates by virtue of Act No. V of 1962 she had also become the owner
of the land held by defendants Nos. 1 and 2. The cases were consolidated for trial after
necessary issues arising from the pleadings were struck and further proceedings were
recorded in the suit filed by the respondents. Voluminous evidence oral as well as
documentary was led on both sides to prove their respective assertions. The issue "if
Ahmed Shah and Akhtar Shah were Shia by faith" as was contended by appellants
(defendants) was eventually answered in affirmative. Under the next issue learned trial
Judge had found that the respondents were not entitled to any share in the estate of both
the deceased. It is also established by evidence that Fateh Haider Shah had died during
the lifetime of his father Ahmad Shah (D 40/27). The suit filed by the respondents was in
consequence of the findings on Issues Nos. 1-2 dismissed by judgment dated 6-31971
after, protracted proceedings extending over a period of seven years. The suit filed by
Mst. Jannat Bibi -had-ended in a compromise between the parties.

4. The respondents went in appeal before learned District Judge to challenge decree of
trial Court dismissing their suit which came up for bearing before an Additional District
Judge. After about a year of institution of appeal, the respondents came up with an
application under Order XLI, 'rule 27, Civil Procedure Code for permission to examine
additional evidence that Ahmed Shah had a daughter, namely, Mst. Imam Bibi who died
during his lifetime. Mst. Jannat Bibi'(defendant 7) was not the daughter of Ahmed Shah.
Application was also made under Order VI, rule 17, Civil Procedure Code for amendment
in the plaint so as to add therein the plea that was put forth in the application for
permission to lead evidence at the stage of appeal that Mst. Imam Bibi was the only
daughter of Ahmed Shah Who had predeceased the latter and Mst. Jannat Bibi was not
the daughter of Ahmed Shah. This application though contested by the appellants was
allowed by learned Additional District Judge with a short order that the proposed
amendment did not run counter to the averments already made in the plaint also adding
thereto a sweeping remark that "it is imperative and just also to allow the amendment.

5. The assertion of the respondents that Mst. Imam, Bibi was a daughter of Ahmed Shah
and had died during latter's life time does not appear to be incorrect. Mst. Noor Khatoon
(defendant 1) widow of Ahmed Shah had appeared as a witness before learned trial Judge
and had said that Imam Bibi was a daughter of Ahmed Shah and had predeceased her'
father. Mst. Noor Khatoon had also admitted in explicit terms that Mst. Jannat Bibi was
also a daughter of Ahmed Shah. Evidently, the fact that Malt. Imam Bibi was a daughter
of Ahmed Shah and had died during his lifetime will not make any difference and the
position shall remain the same whether the question ' of inheritance to the two deceased is
regulated by Sunni Law or Shia Law of inheritance.

6. It was argued on the side of the appellants that amendment in the plaint allowed by
learned Additional District Judge will, have the effect of introducing a new case
inconsistent with that laid in the existing plaint and contrary to the admissions of the
appellants made in certain mutations concerning the property and the evidence adduced
before the learned trial Judge. Ghulam Hussain Shah and Ali Asghar Shah (D. Ws 5/6)
had stated that Mst. Jannat Bibi (defendant No. 7) was daughter of Ahmed Shah and their
version was not disputed during their cross-examination. Safdar Hussain Shah plaintiff
-respondent had also recorded his statement at the trial as P. W. 6. He had also not denied
the status of Mst. Jannat ;Bibi as daughter of Ahmed Shah. Mst. Jannat Bibi was also
shown daughter of the deceased in Mutation No. 1725 (D. 15) concerning inheritance of
Mst. Sarwar Bibi widow of Akhtar Shah which was attested as far back as 1952 in the
presence of Afzal Shah and Safdar Shah respondents. Mst. Jannat Bibi was also
mentioned and accepted as daughter of Ahmed Shah in mutation Exhibit D/41-A attested
in her favour after termination of life estates under Act No. V of 1962 although the
mutation was contested on a different ground that Ahmed Shah was not Shia by faith. The
respondents had hit upon the idea of asking for amendment in the plaint to keep the
litigation alive and to harass the appellants.

Page No. 3 of 6
7. The provisions in Order VI, -rule 17, Civil Procedure Code empowered the Court to
allow either party to alter or amend the pleadings at any stage oil, the proceedings as may
be necessary for the purpose of determining the real question in controversy between the
parties and the power should be liberally exercised so as to advance the interests of
substantial justice. As a general rule amendment should not be refused if it occasioned no
harm to the opposite-party except such as can be sufficiently compensated by costs, the
party asking for amendment had acted in good faith, the amendment did not take away
from the other side a legal right which had accrued to him lapse of time and the
amendment did not change the character of the suit These are the widely accepted
guiding principles for exercise of discretionary power under Order VI, rule 17, Civil
Procedure Code but these are subject to several equally well-recognized exceptions.
Leave to amend the pleadings will be refused where the amendment would introduce a
totally different new and inconsistent case or the amendment will substitute a new cause
for action for the original cause of action. I will refer here a few cases which have a
sufficiently direct bearing on the point at issue in this case. In Ratta v. Jaikaur (35 P L R
69), a daughter of the last male-holder had filed suit for possession against a sister's son
of her father. The trial Court dismissed the suit but on appeal by the plaintiff, learned
District Judge set aside judgment of the Court below and passed a decree in her favour.
The defendant had not alleged in the written statement that the property in dispute was
ancestral but on appeal prayer was made on his behalf for permission to amend the
pleading and to have the case sent back for further enquiry on this point. Learned District
Judge declined to accede to this request and his view was upheld by the High Court. A
similar situation arose in Karam Dad and others v. Muhammad Bibi and others (A I R
1942 Lah. l). In that case also the prayer made by the plaintiff during second appeal to
amend the plaint so as to enable him to allege that the land in dispute was ancestral qua
the plaintiffs was turned down on the ground that the plaintiff's case throughout had been
that the property in suit was non-ancestral. The issue as to the ancestral character of the
property was actually framed in terms of the assertion of the defendants in the written
statement, evidence was led and 4 finding recorded that it was non-ancestral. The
proposed amendment introduced an inconsistent case and could not be allowed at a late
stage, in the appeal. It was also held that even if the amendment were allowed to would
necessitate a remand for further enquiry as to ancestral nature of the property which could
not be allowed as neither the Order XLI, rule 25, nor Order XLI, rule 27, Civil Procedure
Code had any application to the case. Similar view was expressed by Madras High Court
to a Full Bench case Vedachala Chattiar v. Ameena Bi Ammal and others (A I R 1944
Mad 121), that it is far too late at the close of plaintiff's case to allow the defendant to set
up a new case by amendment of an issue framed in the suit, nor will the High Court allow
the amendment in second appeal when it would mean the remanding of the case for
taking further evidence. This principle will equally apply to amendment of pleadings in
the first appeal which necessitated re-opening of the case for further enquiry to case of
Gulab and another v. Fazal Ellahi (P L D 1955 Lah. 26), is also reasonably closer to' the
instant case. In that case, the last male-holder of the land was sided by a widow of his
pre-deceased son. On her death the revenue authorities sanctioned mutation of the land
left by her deceased father-in-law 1/4th in favour of her brother and 3/4th in favour of
heirs of the last mole-holder. The said heirs filed a suit that the daughter-in-law of the last
male-holder had occupied the land merely In lieu of maintenance in her capacity as
widow of the predeceased son of the last owner and she had no ownership rights in the
property. The brother of the deceased lady took up position in the written statement that
she had inherited the land in question as an heir of 'her husband who was last male bolder
and not merely in lieu of her right of maintenance. In the alternative it was pleaded that if
it was established that the husband of the lady had died in the life-time of his father even
then she must be deemed to have succeeded by virtue of right of representation of her
deceased husband under Custom. It was, therefore, asserted that she was the rightful
owner of I/4th share of the property which had now been mutated in favour of the
defendant by the revenue authorities correctly. Necessary issues were framed by learned
Trial Judge. The defendant put in an application for permission to amend the written
statement that the deceased lady had succeeded to the property as the mother of her
children who were the last male-holders. In the alternative it was also sought to be
pleaded that she took possession of the property without any semblance of right on the
death of her father-in-law and acquired a title by prescription over it. It was held that
application so far it concerned the pleading of adverse possession of the lady could not be
allowed, An amendment which could displace the plaintiff's suit or would introduce a

Page No. 4 of 6
new and wholly inconsistent case must not be allowed despite the fact that the powers of
the trial Court to allow the amendment at any stage are fairly wide. In Babu Khtw v.
Municipal Committee, Murree (1969SCMR29), land which belonged to Municipal
Committee Murree was leased out to a non-Muslim for a period of 10 years: renewable at
the option of the lessee on the same terms and conditions for a further period of 10 years.
The lessee constructed two shops on a portion thereof and let them out to Babu Khan
petitioner before the Supreme Court and his uncle during subsistence of the lease. On
partition of the country, the lessee migrated to India and the petitioner continued as a
tenant under the Rehabilitation Department by paying rent to that Department.
Subsequently, the property was purchased by the petitioner in public auction held under
the Settlement Law and permanent transfer deed was also issued in his favour. The
Municipal Committee sought to eject the petitioner on the ground that the period of the
lease had expired. The petitioner filed suit for a declaration to the effect that the lease in
question stood renewed up to the end of 1971, or in the alternative fill license for specific
performance of the contract of lease of the said land. The writ was dismissed by trial
Court whose judgment was upheld in appeal both by an Additional District Judge and the
High Court. The petitioner had also applied second appeal for amendment in the plaint so
as to include therein the contention that after the property had been placed into the
compensation pool under the relevant law it had vested in the Government free from all
encumbrances and, therefore, when it was transferred to the petitioner he became the
fulfledged owner. The amendment was disallowed by the High Court and the order was
upheld by their Lordships of Supreme Court with the view that the amendment sought to
introduce a completely new case on which no evidence had been led and the parties had
never joined issue at any earlier stage. Lastly, reference be made to the case; Bashir
Ahmed v. Qaiser Ali (PLD1973SC507). The relevant observations can be seen at page
512 of the report which are: "It is true that the rule consistently laid down in these
precedents is that although the powers of amendment are wide and should always be
liberally exercised to secure proper administration of justice, yet an amendment which
involves the setting up of a new case and alters the real matter in controversy between the
parties ought not to be allowed."

8. Learned counsel for the respondent defended the impugned order relying on the
observations made by learned Additional District Judge that the plea sought to be added
through amendment did not run counter to the assertions in the original and that the
amendment did not alter character of the suit. It should pass one's comprehension how the
amendment was not inconsistent with the existing plaint. The plea in the original plaint
that Mst. Jannat was daughter of Ahmed Shah and was entitled to 1/2 share as sister of
Fateh Haider Shah deceased and the new plea that 'she was not daughter of Ahmed Shah
ran counter to each other and were inconsistent as the two pleas could not stand together.
The amendment will change radically the complexion of the controversy and could not be
allowed at the stage of appeal after eight years of the start of litigation. A defeated litigant
could not be permitted to evade the defeat, devising a new case. A Court of appeal is not
justified in exposing a party, who has obtained a decree to the brunt of a new attack.

9. Learned counsel for the respondents has referred to the judgment of learned Single
Judge of this Court in Mst. Inayat Bibi v. Abdul Aziz and others (P L 13 1978 Lah. 1435)
and a recent judgment of Supreme Court M. G. Hassan and 4 others v. Sheikh Riaz-ud-
Haq and 5 others (1979 S C M R 15). In the case of Mst. Inayat Bibi, Sher Mohammad
father of the defendant in the suit had made gift of his land in her favour. The relations of
Sher Muhammad filed a suit for a declaration that the gift was opposed to the law and
custom governing Sher Muhammad and was, therefore, void and ineffective against their
reversionary rights. Sher Muhammad died during pendency of the suit whereupon the
plaintiffs made an application for amendment of the plaint so as to claim possession of
the disputed land instead of a mere declaration. Learned Trial Judge allowed the plaintiffs
to amend the plaint to claim possession of the land by way of consequential relief. The
order of the trial Court was challenged in revision before the High Court and the
contention that the order allowing the plaintiffs to claim possession by way of
consequential relief amounted to suo motu order of amendment which was not
permissible in law. The contention was rejected and it was held that the order could not
be treated as suo motu direction by the Court since the impugned order was made by the
Court in pursuance o. the plaintiff's application and not of its own motion. In the next
case before the Supreme Court (1979 S C M R 15) the plaintiffs were granted permission

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co amend the plaint which was confined to the addition of a single prayer pause in the
relief relating to the award of mesne profits/demages/compenption for use and occupation
of the property in question. by the defendants from such date as the Court might hold the
plaintiffs entitled to possession thereof up to the date of its actual delivery. The
contentions against propriety in law of the amendment were turned down on the ground
that mesne profits could be awarded by the Court in a fit case even without a specific
prayer having been made in the plaint. The plea that the new relief to be added through
amendment was barred by limitation was not sustainable in law and otherwise irrelevant,
also. The respondents could file a separate suit and there was no reason why they could
not be allowed to amend the plaint. The amendment which did not take always a legal
right which accrued to the defendant or change the complexion of the/p suit could be
allowed in suitable cases, Both these cases do not bear even a shadow of semblance with
the point at issue in this appeal if amendment which introduces a today different and new
case could be allowed the character of the suit may not be changed. Learner counsel for
the respondents had also called attention to the case of Bushir Ahmed Qaiser Ali (P L D
1973 S C 507) referred to in M. G. Hassan and others' case which has already been
noticed in the foregoing lines in a different context. Bushir Ahmed's case cited in 1179 S
C M K 15 fop the proposition that petition in revision will be compete not to challenge
order allowing amendment of pleadings shay Ahmed's s case amendments which were
allowed by the. High Court setting aside order of learned trial Court rejecting the
application were to be in the nature of consequential reliefs arising tram then bold use of
action on which the original suit was based, the amendments were in fact intended to
remove the objections raised by the defendant in the suit as to maintainability of the suit
under section 42, Specific Relief. Ad, and could hardly be described as setting up a new
case instead of the original claim. As stated in the foregoing lines this judgment its the
case of the appellants matter in controversy supports involves the setting up of a new case
and alter between the parties art not to be allowed.

10, As a result of the above discussion, I hold that the order allowing amendment in the
plaint which had the effect of setting up of a. totally no and different case was not
justified in law. The appellant is accepted an order of learned Additional District Judge is
set aside. Costs in this appeal to abide the event.

11. The appeal shall be heard and disposed of on merits. Record be to learned District
Judge, Rawalpindi before whom the parties shall on 27-3-1980 for fixation of a date of
bearing in the appeal for a two weeks, The appeal shall preferably, be decided period not
exceeding by learned District Judge himself made over to the senior-most Additional
Distract Judge. Final judgment shall be announced by or on 15-4-1980.

M.Y. M Appeal disposed of.

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