Imam Bukhsh etc. vs Karam Khatoon etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

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Imam Bukhsh etc. Vs. Karam Khatoon etc. Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 22.01.2025. Malik Imtiaz Mehmood, Advocate for petitioners. M/s. Nadeem Iqbal Ch., Mian Muhammad Imran and Muhammad Sajid Mirani, Advocates for respondents.

Through this Constitutional Petition, the petitioners have called in question the orders dated 12.05.2018 and 10.07.2018 passed by both the trial and appellate courts, whereby application for amendment in written-statement filed by them has concurrently been dismissed.

2.The grievance of the petitioners is that both the courts below have not appreciated that by allowing the amendment sought by them, the nature and complexion of the defence taken through written statement would not change rather the same amounts to an explanation of the earlier defence taken by the petitioners.

3.On the other hand, learned counsel for respondents have defended the impugned orders by stating that the application for amendment of written statement had been filed as an afterthought for changing the stance earlier taken by the petitioners and that too after proceedings of the trial had nearly come to an end, which is now listed for hearing for final arguments and passing of judgment, therefore, the same cannot be allowed.

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4.Learned counsel for the petitioners when confronted states that he would not seek permission to lead additional evidence in support of petitioners’ claim, if the amendment in written statement is allowed.

5.The perusal of record shows that Karam Khatoon-respondent No.1 instituted a suit for declaration and permanent injunction titled as “Karam Khatoon vs. Khuda Bukhsh etc.” on 25.06.2008 before learned Civil Judge 1st Class, Khairpur Tamewali to seek decree to the effect that she being daughter of Panju Khan s/o Dur Muhammad, the original owner of property, is entitled to get 1/5th share in his inheritance and inheritance mutation No.258 dated 25.03.1943 entered in the record by excluding her share of inheritance is based on fraud and forgery and is ineffective upon her rights. The petitioners contested the claim of respondent No.1 by denying that she was the daughter of Panju Khan (deceased). Whereafter the matter was proceeded by the court for quite some time resulting in some orders which were challenged by the parties in higher forums up to this Court, besides an application under Order VII Rule 11 of CPC filed by the petitioners was dismissed and suit was decreed on 02.11.2018, however the matter was remanded by the appellate court to the trial court for decision afresh on 11.11.2019, whereafter the present petitioners filed an application for comparison of signatures on 19.11.2020, the said application and revision were dismissed vide order dated 31.03.2021 passed by the learned Addl. Sessions Judge, against which Writ Petition No. 4533/2021 was filed, which was withdrawn by the

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petitioners on 03.10.2022 as having become infructuous due to the death of Karam Khatoon, whose signatures were required to be verified. Side by side, the petitioners filed an application for amendment in written statement on 12.05.2018, which has concurrently been dismissed through the impugned orders.

6.The petitioners had previously taken the stance through their written statement that Karam Khatoon was not the daughter of Panju Khan and evidence had already been recorded in the matter, however, through the application under consideration they want to make an amendment in written statement to the effect that the inheritance mutation was entered in the record on the basis of custom whereby only male heirs were entitled to the inheritance by exclusion of females. Although, an amendment in the pleadings explaining the earlier stance taken by the party is permissible and in the written statement also explanation to the earlier stance, which is not contradictory to the earlier one taken by the petitioners, is permissible under the law but the same is subject to the rider that the said amendment either arises out of earlier stance taken by a party or explains the same and is not inconsistent with the previous stance taken in the written statement for the reason that inconsistent and contradictory pleas may in certain situations be fatal to the defence taken by a party.

7.It divulges from the record that in the present case, although the petitioners had mentioned that inheritance mutation had been correctly entered in the record and respondent No.1 was not entitled to share of inheritance but their claim was based on the ground that

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respondent No.1 was not daughter of Panju Khan, hence, it was claimed that she was not entitled to inheritance. Whereas, apparently through the amendment application, as an afterthought the petitioners seek amendment in their written statement to the effect that mutation was entered in the record on the basis of custom i.e. Pag Vand ()پگ ونڈ, whereby daughters are not entitled to inheritance in the presence of male heirs, which makes the stance of the petitioners entirely different from the earlier stance taken by them and appears to be an afterthought as previously they had denied respondent No.1 to be the daughter of Panju Khan whereas by taking afore-referred stance through amendment sought by them, their claim would become that respondent No. 1 despite being the daughter of Panju Khan was not entitled to get share in inheritance on the basis of custom prevalent at the time of death of Panju Khan (deceased). The said stance had not been taken as an alternate stance at the earlier stage despite the fact that the matter has been pending adjudication for many years as the suit was filed on 25.01.2008 and amendment had been sought for the first time after more than 10 years had passed during the pendency of the suit and the trial is near completion. The question arises that whether such an amendment should be allowed at this stage.

8.Although in Mst. Rahim Noor versus Mst. Salim Bibi and 2 others (PLD 1992 SC 30) it has been held that amendment in pleadings was not prohibited even at late stage, when, of course it was absolute necessary and would advance the cause of justice, however, the same does not mean that amendment in pleadings i.e. plaint and written

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statement was to be allowed in all eventualities as there may be some exceptions to the same resulting in refusal by the court as has been clarified by the principles relating to amendment of pleadings mentioned in Mst. Ghulam Bibi and others versus Sarsa Khan and others (PLD 1985 SC 345) wherein it has been held that liberal view has to be taken for allowing amendment of plaint and other pleadings at any stage of the proceedings up to the Supreme Court if it is necessary for determining the real question in issue for just decision of the matter and delay in seeking amendment would not ordinarily be fatal but such amendment could be disallowed if amendment sought changed cause of action or subject-matter in lis or changed the facts of the case, nature and complexion of the suit or would result in defeating the ends of justice and leads to smothering genuine litigation or the party opposing the amendment would be deprived of some right, convenience or advantage or the same causes embarrassment or frustration to a party or that the amendment results in totally a new suit.

9.The question of amendment is somewhat similar situation came up for hearing before the Hon’ble Supreme Court of Pakistan in case reported as Syed Muhammad Ali and others vs. Syed Dabir Ali and others (2016 SCMR 2164), wherein, the daughter had filed a suit claiming her inheritance share in the property left behind by the father of the parties, whereas sons filed written statement challenging the claim made by the daughter. Subsequently sons filed an application for amendment in written statement claiming that the mother of the parties had created waqf-ul-aulad

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in their favour, therefore, the daughter was not eligible to claim her share to such extent. The Hon’ble Supreme Court held that Waqf was said to have been created in the year 1966 but in the original written statement that was filed by the sons in the year 1968, factum of creation of such waqf was not mentioned. Alleged creation of waqf was clearly an afterthought and was raised for the first time in application for amendment of written statement, hence, such amendment in the written statement should not have been allowed.

10.The Hon’ble Supreme Court of Pakistan in another case titled Abaid Ullah Malik vs. Additional District Judge, Mianwali and others (PLD 2013 Supreme Court 239), wherein an amendment in the plaint of pre-emption suit was sought to change time of Making Talb-e- Muwathibat to 11a.m. instead of 10a.m. mentioned in the plaint, which application had been filed after written statement had been submitted and evidence had been recorded and the petitioner sought to mention the time for making Talbs in order to overcome the contradiction in time mentioned in the plaint of original suit and the evidence recorded in the matter, has held that seeking of such amendment was not be bona fide as the pre- emptor by virtue of amendment wanted to withdraw from his admission about the time given in the plaint and that too after recording of his statement and that of his witnesses.

11.Somewhat similar view taken by the Hon’ble Supreme Court of Pakistan in case reported as Mubashar Ahmad vs. Mst. Zahida Parveen and others (2008 SCMR 762), wherein in a suit for specific performance, petitioner filed

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written statement in which he did not deny execution of agreement but subsequently moved an application for amendment of written statement seeking permission to allow him to deny execution of agreement at a belated stage after 18 years, which application was dismissed on the ground that petitioner had sought to change very basis of defence taken in her written statement by introducing new element of denial of execution of agreement.

12.In the case titled Muhammad Aziz versus Mst. Ahmad Bano (1982 CLC 585), the Sindh High Court held that the principles for amendment of pleadings contained in Order VI Rule 17 CPC would be applicable to the amendment of written statement where under defendant is entitled to raise additional pleas in amended written statement but in no circumstances such additional pleas can be contrary to the original plea.

13.In the present case, not only the application seeking amendment of written statement has been filed at belated stage when the trial is near to completion but also evidence by both the parties has been recorded. At the very inception of the case, petitioners had known that respondent had challenged the inheritance mutation entered in the record despite which they did not raise the plea that the same had been entered in the record on the basis of custom i.e. Pag Vand ()پگ ونڈ, whereby females had been excluded from inheritance rather they took the plea that the respondent was not the daughter of deceased and could not claim share in his inheritance. By seeking the same amendment in written statement the petitioners are now trying to

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take a completely different plea and have sought to change very basis of defence taken by them in their written statement by introducing new element of denial of the right of the respondent to claim share in inheritance, which is based on an afterthought as the said defence was available to them throughout the proceedings but had not been earlier raised in the matter. Besides petitioners were also required to establish on record any custom prevalent at the time of issuance of inheritance mutation, which throughout the evidence was not the stance taken by the petitioners and by allowing the said amendment, the defence of the petitioners that respondent No.1 was not the daughter of Panju Khan would be changed to the effect that she is his daughter but not entitled to get share in inheritance on the basis of custom, which apparently does not appear to be explanation of the previous stance taken by the petitioners, rather appears to have been taken an afterthought to fill in the lacuna in the pleadings and proof of earlier stance and cannot be treated as bona fide attempt to explain the previous stance, hence, such contradictory stance cannot be allowed to be taken at this belated stage and the application for amendment of plaint was liable to be dismissed on the basis of aforementioned observations.

14.In view of above, learned counsel for the petitioners has failed to point out any illegality, jurisdictional defect, misreading and non-reading of the record for this Court to interfere in the well- reasoned orders passed by both the courts below, whereby the application for amendment of written statement has been dismissed. Consequently, this

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constitutional petition being devoid of any merit stands dismissed.

(Muzamil Akhtar Shabir) Judge Naveed/Zeeshan Khan

APPROVED FOR REPORTING