Ajmal Khan & others Vs Shah Wazir Khan others

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department)

(1)W.P No. 68-M/2021

Ajmal Khan & others.................. ... (Petitioners) v/s Shah Wazir Khan & others....... ..... (Respondents) Present: - Mr. Ali Baz Khan, AHC, for petitioners. Mr. Abdul Halim Khan, ASC, for respondents.

(2)C.R. No. 78-M/2023

Shah Wazir Khan & others.......... .... (Petitioners) v/s Ajmal Khan & others................ ... (Respondents) Present: - Mr. Abdul Halim Khan, ASC, for petitioners.

Mr. Ali Baz Khan, AHC, for respondents.

Date of hearing: 04.6.2025

JUDGMENT

SALAH-UD-DIN, J.- This single judgment shall decide instant writ petition bearing No. 68-M of 2021 titled “Ajmal Khan & others v/s Shah Wazir Khan & others” as well as connected C.R. No. 78-M of 2023 titled “Shah Wazir Khan & others v/s Ajmal Khan & others”, as both these connected petitions pertain to same controversy i.e. legacy of the deceased Madar Khan.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

2.Arguments of learned counsel for parties were heard in considerable detail and available record gone through with their valuable assistance.

W.P. No. 68-M of 2021

Through instant writ petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, present petitioners namely Ajmal Khan & others have called in question order/judgment dated 18.12.2020 of the Court of learned Additional District Judge-III/I.Z.Q, Swat, whereby application filed by defendants/respondents for amendment of their written statement was allowed.

A bare look of record would reveal that the present petitioners then plaintiffs brought a suit for declaration etc. against defendants/respondents claiming the suit property to be the legacy of late Madar Khan, common predecessor-in-interest of both the parties. Said Madar Khan was survived by Shah Zaman Khan, Mst. Gul Mina and Mst. Mayar Bibi.

Plaintiffs/respondents are the legal heirs of deceased Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

ladies Mst. Gul Mina and Mst. Mayar Bibi. As against this, at initial stage of the proceedings, defendants on appearance before learned civil Court filed their written statement, whereby they have come up with the defence plea that the suit in hand was filed in the year 2017, whereas the predecessor-in-interest of the parties namely Madar Khan has been died some 90 years back, therefore, the issue of legacy of deceased Madar Khan would be governed under the Riwaj prevalent at the time of his death. Defendants also asserted that their predecessor namely Shah Zaman Khan had subsequently transferred the suit property in their favour by dint of mutation No. 1 attested on 07.3.1987. It was during pendency of ibid suit, when defendants/respondents submitted an application for amendment of their written statement. Said application was vehemently resisted by plaintiffs/petitioners by filing their written reply raising various legal as well as factual objections. Subject application at first instance was dismissed by learned Civil Judge/I.Q, Swat vide its order dated 30.5.2019 citing the reason Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

that the defendants/respondents cannot be allowed to put-forward a new line of defence completely resiling from their earlier stance. Feeling aggrieved, defendants then petitioners preferred a civil revision bearing No.

73/CR of 2019 before learned revisional Court, which was allowed by the Court of learned ADJ-III/I.Z.Q, Swat vide the impugned order/judgment dated 18.12.2020, in the following manner: -

“8. In the wake of discussion made ibid, I while accepting instant revision petition am constrained to set aside the impugned order of the learned Trial Court. Resultantly, the application moved by defendants/petitioners for amendment of written statement is accepted. Parties are left to bear their own costs.”

It was rightly pointed out by learned

revisional Court in its impugned order that there is no denial to this fact that a party cannot be allowed to fill lacuna in his/her line of defence by way of amendment, however, in context of the case in hand, it was themselves admitted by plaintiffs in Para No. 8 of their plaint that it was Shah Zaman Khan who had used the legacy of deceased Madar Khan qua his purchased property. It was further held by learned revisional Court that the proposed amendment would Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

in no way change the line of defence of defendants, rather it would benefit both the parties to resolve the core issue of distribution of legacy of deceased Madar Khan. Above all, the suit was at the very initial stage and even issues were yet to be framed, out of the divergent pleadings of the parties.

Issue with respect to amendment in the

pleadings is governed by Order VI Rule 17 CPC, which is reproduced as under for the sake of ready reference: -

“[...]The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

Above quoted provision of law would

transpire that the desire amendments could only be granted, if the same are necessary for the purpose of determining the real question in controversy between the parties. It is well established law that amendments could only be granted, if the same do not change the nature & complexion of the suit. In the subject case, the respondents/defendants have sought amendments Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

in their written statement by way of amendment application, which after perusal, transpires that the proposed amendments would not at all change the nature or complexion of the suit and moreso, the suit is also at the very initial stage of recoding evidence, as such, in view the peculiar facts & circumstances, such amendments could be allowed. Reliance is placed on the case of Haji Sultan Abdul Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others reported as 2018 SCMR 82, wherein, Hon’ble apex Court has held that:- "As to the other ground that through the proposed amendment, a contradictory plea is being introduced which would change the entire complexion of the case, we are of the view that the execution of the disputed wills was challenged basically on the ground that Late Ghulam Jillani on account of his mental and physical health was not in a position to voluntarily execute such wills in a proper frame of mind. Therefore, keeping this plea in sight the wills were considered by the petitioners to be an outcome of undue influence and coercion. By taking such plea, it cannot be said that the petitioners also had first-hand knowledge of the execution of the wills by Late Ghulam Jillani himself. It was only when the claim of the respondents surfaced on the basis of the disputed wills, the plea of undue influence and coercion was taken keeping in view his bad state of health but it can also give rise to the belief that even in a bad state of health (which is to be proved in evidence) Late Ghulam Jillani may not have executed the wills himself and hence could be the result of forgery. So through the proposed amendment, all that the petitioners are seeking is verification of the signatures of Late Ghulam Jillani on the disputed wills. Therefore, we do not consider it at all to be a case of contradictory or mutually destructive pleas, which is being introduced through the proposed amendment. At Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

best, it could be a plea in the alternative that can legitimately be taken in the circumstances of the case. When a plea in the alternative can naturally arise and can co-exist with the main plea, which was not taken in the plaint at the time of filing of the suit then such a plea can be introduced by seeking amendment in the pleadings."

Similarly, in the case of Dausa and

others v. Province of The Punjab and others reported as 2016 SCMR 1621, it was also held by apex Court that: -

"In the light of the above facts, the Court has endeavored to construe the case of the parties in the light of the pleadings, available evidence on the record and the law applicable to the controversy which involves the interest of evacuee mortgagees. Due to a wrong date of creation of mortgage on the suit land given in the plaint, a reasonable factual plea in the suit based on the redemption mutation No. 2 was rendered futile. It is noted that the document Exb.P-16 (comprising the registered mortgage deed dated 22.12.1882 and mutation No.4 dated 05.05.1887) clarifies the confusion about the creation of the mortgage and cures the contradiction in the suit. Moreover, Exb.P-16 is an admitted document by the respondents and belongs to the official record. It is therefore, both genuine and reliable. The actual date of creation of the mortgage which is evidenced by the document Exb.P-16 is consistent with the plea of mortgage of the suit land taken in the plaint. The amendment application (C.M.A. No.3811-L of 2006) by the appellants/plaintiffs for incorporating the correct date of the mortgage in the plaint does not alter the nature of the case pleaded by the plaintiffs. The prayer for the incorporation of an undisputed fact is of a formal nature and brings factual clarity which promotes the fair adjudication of the controversy and the interest of justice. Compliance with the said criteria satisfies the principles for allowing amendment in pleadings even by the highest Court."

In the case of Mst. Ghulam Bibi and

others v. Sarsa Khan and others reported as PLD 1985 Supreme Court 345, the Hon’ble apex Court reiterated same rational of law by observing that: - Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

"What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the on initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. instead of declaration etc. and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualises is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualises the award of adequate compensation in that, the amendment has to be allowed "in such manner and on such terms as may be just."

Further reliance in this regard may also be placed on the judgment of the Lahore High Court [Multan Bench] rendered in the case of Muhammad Saleem Naseem v. Additional District Judge, Dunyapur and 12 others reported as 2021 CLC 87, wherein, it was held that: -

“It is settled rule that the application under Order VI Rule 17 CPC, can be entertained and allowed at any stage of the proceedings if the same is necessary for effective decision thereof.”

In view of above discussion and

exposition of law, this Court has reached to the conclusion that the learned revisional Court vide the Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

impugned order/judgment dated 18.12.2020, has rightly accepted application of the respondents/ defendants for amendment of their written statement, wherein no illegality or irregularity could be pointed out by learned counsel for petitioners/plaintiffs.

C.R. No. 78-M of 2023

Through instant civil revision filed U/S 115 of Code of Civil Procedure, 1908 (“C.P.C”), petitioners/plaintiffs have called in question judgment & decree of the Court of learned Additional District Judge-II/I.Z.Q, Swat, dated 19.01.2023, whereby, the appeal filed by plaintiffs then appellants against order/judgment dated 17.01.2022 was accepted and the case was remanded to learned trial Court for decision of the case on merits in accordance with law after recording of evidence of the parties. It would not be out of place to mention here that the learned trial civil Court on acceptance of application filed by petitioners/ defendants under Order VII Rule 11 CPC rejected the plaint of respondents/plaintiffs.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

It divulges from bare perusal of record that the respondents then plaintiffs have brought a suit against petitioners then defendants for declaration etc.

in respect of the suit property left behind by common predecessor-in-interest of the parties namely Madar Khan. On appearance, defendants contested the suit of plaintiffs by filing their written statement. During pendency of the suit, defendants also submitted an application for rejection of the plaint filed by plaintiffs within the meaning of Order VIII Rule 11, CPC.

Aforesaid application was duly replied by plaintiffs by filling their written reply. Learned civil Court after hearing arguments of the parties, accepted the application of the petitioners/defendants and thereby rejected the plaint of respondents/plaintiffs vide order/judgment dated 17.01.2022, on account of having no cause of action or locus standi. It obliged respondents then appellants to prefer an appeal before the Court of learned Additional District Judge-II, Swat, which was allowed vide the impugned judgment & decree dated 19.01.2023 by setting aside Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

order/judgment of learned lower Court and thereby the case was remanded to learned civil Court for decision of the matter-in-issue on merits in the light to evidence to be adduced by both the contesting parties.

It is settled since long that plaintiff in his plaint has just to disclose a cause of action and then after recording of pro & contra evidence, learned trial Court will determine that as to whether the plaintiff is having a cause of action or not. It is also settled that for the purpose of decision over the application under Order VII Rule 11 CPC, only the contents of the plaint are to be considered and even the written statement or any defence taken therein could not be taken into consideration. In the case of Jewan and 07 others vs.

Federation of Pakistan through Secretary, Revenue, Islamabad and 02 others reported as 1994 SCMR 826, Hon’ble apex Court has held as under: - “The rejection of plaint under Order VII Rule 11 CPC is contemplated at a stage when the Court has not recorded any evidence in suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII Rule 11 CPC cannot take into consideration Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

pleas raised by the defendant in the written statement in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings, unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage, which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII Rule 11 CPC. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence.”

Similarly, in the case of Ghulam Ali vs.

Asmat Ullah and another reported as 1990 SCMR 1630, the following view was formed by apex Court; - “Whether or not oral evidence could be led to support the assertion made in the afore reproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, had to be seen for purpose of determining; whether, the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept in mind regardless of the fact, whether the respondents/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondents' side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint.”

This Court too in identical matter in the

case of Shehzada vs. Khairullah and others reported as 2012 CLD 758 Peshawar, has also observed as follows; -

“That keeping the ‘ratio decedendi’ of the aforementioned judgments of the august Supreme Court, it would be safe to state that the Courts entertaining the application for rejection of the plaint under Order VII Rule 11 CPC has to take into account the plaint and not the stance taken by the defendants in their written statement, if the same was beyond the pale of what was contained in the plaint.”

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Since the matter in hand relates to legacy of deceased Madar Khan and both the parties were also in consonance about their relationship with the said common predecessor-in-interest, therefore, such intricating questions of legacy cannot be resolved without recording of evidence of the parties, therefore, learned civil Court has shown an unnecessary haste while entertaining the application of defendants in respect of dismissal of the plaint of plaintiffs under the garb of Order VII Rule 11 CPC, which mistake has rightly been rectified by learned appellate Court through the impugned remand order. Even otherwise, both the parties would be in the field to pursue their respective claims. Impugned judgment & decree of learned appellate Court is neither perverse nor arbitrary nor whimsical, hence, upheld & maintained,

3.In view of above discussion and

exposition of law, both these connected petitions being devoid of any merits stand dismissed.

Announced Sd/- Dt: 04.6.2025 JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din