Muhammad Taufique vs Adj etc.

FORM No. HCJD/C-121

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No.8673/2014 Mohammad Toufeeq Vs. Additional District Judge, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 05.06.2017 Mr. Muhammad Irfan Arbi, Advocate for petitioner. Ch. Muhammad Saleem Kharal, Advocate for respondents No.3 to 5.

Through this constitutional petition, the petitioner has challenged the judgment dated 19.03.2014 passed by learned Additional District Judge, Alipur, District Muzaffargarh and order dated 19.05.2011 passed by the learned Civil Judge 1st Class, Alipur, District Muzaffargarh whereby the application filed by the petitioner for impleading additional parties and amendment of plaint was dismissed.

2.The brief facts of the case are that the petitioner and respondent No.6 filed a suit for declaration against the respondents No.3 to 5 and others before the Civil Judge, Alipur, District Muzaffargarh. It was claimed that one Murad Ali alias Alia Khan caste Rajput, who died in 1984, was predecessor in interest of the plaintiffs and was owner of property measuring 50 kanals 7 marlas situated in Mauza Phulan Tehsil Alipur. Through inheritance mutation no. 900 dated 13.3.1987 property was transferred to the plaintiffs and their mother Mst. Meenat (widow). Mst. Meenat inherited 1/8 share in property as widow. Mst. Meenat’s property was exchanged through exchange deed no. 1278 dated 19.12.1988 with one Muhammad Ali son of Umrao Ali and exchange mutation no. 1108 was attested on 12.12.1989. Some heirs transferred their inherited property

to the defendants / respondents through registered sale deed on 18.12.1989 and mutation no. 1107 dated 12.12.1989 was attested. The respondents nos. 3 to 5 contested the suit by filing the written statement. Issues were framed and both the parties led their evidence. The petitioner filed an application to implead additional parties and to amend the plaint which application was dismissed on 19.05.2011; the appeal there against was also dismissed on 19.03.2014 by the learned Additional District Judge, Alipur, District Muzffargarh. Being aggrieved, the petitioner has filed the titled constitutional petition to challenge the afore-referred orders and prays that the application for amendment filed by the petitioner be allowed and additional party be allowed to be impleaded.

3.The learned counsel for petitioner has argued that in paragraph 5 of the plaint, the Registry No.1276 has inadvertently been mentioned and the actual Registry No.1274 should be allowed to be substituted in its place. Furthermore, khata measuring 6-kanals 5-marlas, the subject matter of the suit, owned by Mst. Meenat was exchanged with Muhammad Ali son of Amrao Ali vide registry No.1278 dated 19.12.1988 and Mutation No.1108 dated 12.12.1989 and at the time of filing of the suit, the name of Muhammad Ali was inadvertently missed from the array of the parties; however, the Registry No.1278 has been mentioned in the plaint. Therefore, Muhammad Ali who since died should be impleaded through his legal heirs. The parties required to be impleaded are necessary for the just decision of the case.

4.Both the courts below have declined the relief for impleading the legal heirs of Muhammad Ali as party to the suit on the ground that the transaction relates to the year

1988 and 1992 and the suit has been filed in the year 2006 which remained pending for thirteen years before the application was filed by the petitioner. The facts of the case and the relief sought by the petitioner were throughout in the knowledge of the petitioner. The documents were also in the knowledge of the petitioner. Steps were not timely taken to implead parties and bring on the record the proper facts of the case. Impleading new parties and allowing amendment at this stage would add a new cause of action and change the nature of the suit. Besides if the petitioner is allowed to implead new parties and introduce new cause of action it would require recommencing the proceedings of the case, which cannot be allowed at this stage. Keeping in view the afore-said circumstances it is observed that both the courts below have rightly refused to implead the legal heirs of Muhammad Ali as party to the suit. No illegality, perversity or erroneous exercise of jurisdiction in the impugned judgment/order of the courts below has been pointed out; therefore, the findings of the courts below to that extent are maintained. Reliance is placed on Mst. Ghulam Bibi vs. Sarsa Khan (PLD 1985 SC 345).

5.As far as the question relating to mentioning the registered sale deed No.1276 instead of 1274 is concerned, this appears to be a clerical mistake that has erroneously and inadvertently crept into the plaint while drafting the plaint. This is evident from Mutation No.1107 available at page 58 of this petition and referred to by the counsel for the petitioner to show that the number of the sale deed mentioned therein is 1274 and not 1276 as erroneously mentioned in the plaint. In these circumstances it would be appropriate to allow this amendment in the plaint. Reliance is placed on Mst. Ghulam Bibi vs. Sarsa Khan (PLD 1985

SC 345). Resultantly, the correction in paragraph 5 of the plaint is allowed to be made. The Registry No.1276 mentioned in para 5 of the plaint shall be allowed to be substituted with Registry No.1274.

6.With these observations, this constitutional petition stands disposed of in the above terms.

(Muzamil Akhtar Shabir) Judge *KMSubhani*