PLJ 2000 SC (AJK) 237 [Appellate Jurisdiction]
Present: SARDAR said MUHAMMAD khan, C.J. AND muhammad yunus surakhvi, J.
Mst. ANWAR BEGUM and another-Appellants
versus
MAZHAR HUSSAIN and another-Respondents Civil Appeals Nos. 123 of 1999 and 124 of 1999, decided on 26.4.2000.
(On appeal from the Order of the High Court dated 15.9.1999 in Civil Revisions Nos. 2 & 3 of 1999)
Civil Procedure Code, 1908 (V of 1908)--
—O.VI, R. 17--Specific Relief Act (I of 1877), S. 42-Declaratory suit for cancellation of gift deed-Plaintiffs subsequent application for amendment of his plaint introducing therein prayer for possession was dismissed by Trial Court as also by the High Court-Validity-Courts below had dismissed amendment sought on the ground that the same would change nature of suit and was sought after considerable delay from the date of objection raised by defendant in his written statement that possession of land was with him--Validity~Conversion of declaratory suit to suit for possession would not change nature of suit in substance, in as much, as basically plaintiffs intend to annul gift deed and by amendment they were seeking additional relief of possession-Amendment could not be disallowed merely because that was being sought after expiry of period of four years-Orders of Courts below disallowing amendment of plaint were set aside and plaintiffs were directed to amend their respective plaints on payment of specified costs. [P. 239] A,
PLD 1963 SC 191; 1995 SCMR 69; 1969 SCMR 277.
Mr. Muhammad Yunus Arvi, Advocate for Appellants. Ch. Muhammad Akhtar, Advocate for Respondent No. 1. Date of hearing: 26.4.2000.
judgment
Sardar Said Muhammad Khan, C.J.--As the above titled appeals arise out of the identical case pertaining to the same land, the same are hereby disposed of by this single judgment.
2. The brief facts of the case are that two suits, one by Mst. Anwar Begum and the other by Allah Ditta, were instituted seeking the cancellation
of a gift-deed dated 30.10.1991. Mazhar Hussain, respondent-donee, contended in the written statement that the possession of the suit land was
with him and a declaratory suit without seeking consequential relief was not competent. The issues were framed in the suits and evidence of the plaintiffs
was recorded when two amendment applications were filed by the plaintiffs- appellants seeking amendment in the plaint to the effect that they were
deprived of the possession during the pendency of the suit and, thus, sought the amendment seeking the relief of possession. The trial Court, after taking
objections from, the defendant-respondent, dismissed the applications observing that the same were belated, mala fide and also change the
character of the suit. On revision petition to the High Court, the findings of the Court below were confirmed. It is against the aforesaid Order of the High
Court that the present appeals have been preferred.
3. Mr. Muhammad Yunus Arvi, Advocate, the learned counsel for the appellants, has submitted that mere delay in filing the amendment
application is no ground for rejecting the same and that the findings of the High Court that the applications seeking amendment were mala fide are
without any justification. He has further submitted that the basic facts which have been alleged seeking the cancellation of gift-deed are to be
proved by the plaintiffs-appellant if the gift-deed is cancelled, the plaintiffs- appellants would be entitled to the possession 011 the same facts. Thus, he
has argued that there is no question of change of the character of the suit merely because the relief for possession has been sought by the plaintiffs-
appellants.
4. In reply, Ch. Muhammad Akhtar, Advocate, the learned counsel for Respondent No. 1, has controverted the arguments advanced on behalf of
the appellants. He has contended that the respondent-defendant took the stand in the written statement filed by him that the possession of the suit
land was with him and, thus, the declaratory suits filed by the appellants, herein, were not competent without seeking consequential relief of possession but despite that the plaintiffs-appellants kept mum and when the attorney of one of the plaintiffs-appellants admitted in his statement that the possession was with the defendant-respondent, they came up with an amendment application after the expiry of about four years of institution of the suits. He has contended that if a party takes a particular stand in the pleadings and sticks to it despite objection by the opposite party, such a party cannot be permitted to take contradictory stand by seeking amendment after such a long time.
5. We have given due consideration to the arguments raised at the Bar. The Courts below have dismissed the amendment sought on the ground that it changed the nature of the suit and is sought after a considerable delay from the date of the objection raised by the defendant-respondent in his written statements that the possession of the land was with him. It may be observed that the plaintiffs-appellants want to annul the gift-deed in question on the grounds that the same was in excess of the share of the donor and was not accompanied by the delivery of possession. Now they seek the amendment in terms that they have been deprived of the possession during the pendency of the suits. Irrespective of the fact whether they were deprived of the possession during the pendency of the suits or not, the fact remains that the conversion of declaratory suits to suits for possession would not change the nature of the suits in substance; basically, the plaintiffs-appellants intend to annul the gift-deed and by amendment they seek an additional relief of possession; similarly, the amendment cannot be disallowed merely because that is being sought after the expiry of period of four years. A reference may be made to the following authorities in support of the aforesaid view:--
1. Sultan Ahmad v. Sahu (1969 SCMR 277),
2. Muhammad Mian v. Syed Shamimullah (1995 SCMR 69); and
3. Keramat Mi v. Muhamamd Yunus Haji (PLD 1963 SC 191).
Thus, we are unable to subscribe to the view of the Courts below that the amendment sought would change the nature of the suits filed by the plaintiffs-appellants and, thus, the same could not be allowed.
In the aforesaid view of the matter, we accept both the above entitled appeals, set aside the orders of the Courts below and direct that the plaintiffs-appellants shall be allowed to amend their respective plaints on payment of Rs. 1,500/- as costs, in each of the suits. The appeals stand accepted as indicated above.
(A.A. J.S.) Appeals accepted.
Present: SARDAR said MUHAMMAD khan, C.J. AND muhammad yunus surakhvi, J.
Mst. ANWAR BEGUM and another-Appellants
versus
MAZHAR HUSSAIN and another-Respondents Civil Appeals Nos. 123 of 1999 and 124 of 1999, decided on 26.4.2000.
(On appeal from the Order of the High Court dated 15.9.1999 in Civil Revisions Nos. 2 & 3 of 1999)
Civil Procedure Code, 1908 (V of 1908)--
—O.VI, R. 17--Specific Relief Act (I of 1877), S. 42-Declaratory suit for cancellation of gift deed-Plaintiffs subsequent application for amendment of his plaint introducing therein prayer for possession was dismissed by Trial Court as also by the High Court-Validity-Courts below had dismissed amendment sought on the ground that the same would change nature of suit and was sought after considerable delay from the date of objection raised by defendant in his written statement that possession of land was with him--Validity~Conversion of declaratory suit to suit for possession would not change nature of suit in substance, in as much, as basically plaintiffs intend to annul gift deed and by amendment they were seeking additional relief of possession-Amendment could not be disallowed merely because that was being sought after expiry of period of four years-Orders of Courts below disallowing amendment of plaint were set aside and plaintiffs were directed to amend their respective plaints on payment of specified costs. [P. 239] A,
PLD 1963 SC 191; 1995 SCMR 69; 1969 SCMR 277.
Mr. Muhammad Yunus Arvi, Advocate for Appellants. Ch. Muhammad Akhtar, Advocate for Respondent No. 1. Date of hearing: 26.4.2000.
judgment
Sardar Said Muhammad Khan, C.J.--As the above titled appeals arise out of the identical case pertaining to the same land, the same are hereby disposed of by this single judgment.
2. The brief facts of the case are that two suits, one by Mst. Anwar Begum and the other by Allah Ditta, were instituted seeking the cancellation
of a gift-deed dated 30.10.1991. Mazhar Hussain, respondent-donee, contended in the written statement that the possession of the suit land was
with him and a declaratory suit without seeking consequential relief was not competent. The issues were framed in the suits and evidence of the plaintiffs
was recorded when two amendment applications were filed by the plaintiffs- appellants seeking amendment in the plaint to the effect that they were
deprived of the possession during the pendency of the suit and, thus, sought the amendment seeking the relief of possession. The trial Court, after taking
objections from, the defendant-respondent, dismissed the applications observing that the same were belated, mala fide and also change the
character of the suit. On revision petition to the High Court, the findings of the Court below were confirmed. It is against the aforesaid Order of the High
Court that the present appeals have been preferred.
3. Mr. Muhammad Yunus Arvi, Advocate, the learned counsel for the appellants, has submitted that mere delay in filing the amendment
application is no ground for rejecting the same and that the findings of the High Court that the applications seeking amendment were mala fide are
without any justification. He has further submitted that the basic facts which have been alleged seeking the cancellation of gift-deed are to be
proved by the plaintiffs-appellant if the gift-deed is cancelled, the plaintiffs- appellants would be entitled to the possession 011 the same facts. Thus, he
has argued that there is no question of change of the character of the suit merely because the relief for possession has been sought by the plaintiffs-
appellants.
4. In reply, Ch. Muhammad Akhtar, Advocate, the learned counsel for Respondent No. 1, has controverted the arguments advanced on behalf of
the appellants. He has contended that the respondent-defendant took the stand in the written statement filed by him that the possession of the suit
land was with him and, thus, the declaratory suits filed by the appellants, herein, were not competent without seeking consequential relief of possession but despite that the plaintiffs-appellants kept mum and when the attorney of one of the plaintiffs-appellants admitted in his statement that the possession was with the defendant-respondent, they came up with an amendment application after the expiry of about four years of institution of the suits. He has contended that if a party takes a particular stand in the pleadings and sticks to it despite objection by the opposite party, such a party cannot be permitted to take contradictory stand by seeking amendment after such a long time.
5. We have given due consideration to the arguments raised at the Bar. The Courts below have dismissed the amendment sought on the ground that it changed the nature of the suit and is sought after a considerable delay from the date of the objection raised by the defendant-respondent in his written statements that the possession of the land was with him. It may be observed that the plaintiffs-appellants want to annul the gift-deed in question on the grounds that the same was in excess of the share of the donor and was not accompanied by the delivery of possession. Now they seek the amendment in terms that they have been deprived of the possession during the pendency of the suits. Irrespective of the fact whether they were deprived of the possession during the pendency of the suits or not, the fact remains that the conversion of declaratory suits to suits for possession would not change the nature of the suits in substance; basically, the plaintiffs-appellants intend to annul the gift-deed and by amendment they seek an additional relief of possession; similarly, the amendment cannot be disallowed merely because that is being sought after the expiry of period of four years. A reference may be made to the following authorities in support of the aforesaid view:--
1. Sultan Ahmad v. Sahu (1969 SCMR 277),
2. Muhammad Mian v. Syed Shamimullah (1995 SCMR 69); and
3. Keramat Mi v. Muhamamd Yunus Haji (PLD 1963 SC 191).
Thus, we are unable to subscribe to the view of the Courts below that the amendment sought would change the nature of the suits filed by the plaintiffs-appellants and, thus, the same could not be allowed.
In the aforesaid view of the matter, we accept both the above entitled appeals, set aside the orders of the Courts below and direct that the plaintiffs-appellants shall be allowed to amend their respective plaints on payment of Rs. 1,500/- as costs, in each of the suits. The appeals stand accepted as indicated above.
(A.A. J.S.) Appeals accepted.
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