Sadaqat Ali Khan (Decease) etc. vs Zia Safdar Malik etc.

Stereo. H C J D A 38.

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

W.P.No.1975 of 2022

Sadaqat Ali Khan through LRs Versus Zia Safdar Malik and others and others

JUDGMENT

Date of Hearing: 19.01.2026 Petitioners by: Barrister Ch. Imran Hassan Ali, ASC. Respondents by: M/s. Ajam Naz Malik, ASC and Raja Waqar Ilyas, Advocate.

JAWAD HASSAN, J. Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioners have impugned the orders dated 05.10.2019 and 13.02.2020, passed by the learned Courts below; whereby their application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (the “CPC”), seeking amendment in the written statement, was dismissed.

I. PETITIONERS’ SUBMISSIONS

2.Barrister Ch. Imran Hassan Ali, ASC, while providing history of the case submitted that Respondents No.1 and 2/Plaintiffs (the “Respondents”) filed a suit for declaration, cancellation of document, permanent and mandatory injunction against the Petitioners/ Defendants No.1, 2, and 6 to 9

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(the “Petitioners”), which is pending adjudication before the learned trial Court.

The Petitioners filed their written statement wherein they categorically denied the Respondents’ claim regarding land measuring 62 kanals and 13 marlas bearing Khasra No.2171, and the execution and registration of the exchange deed. He added that the entire defence of the Petitioners/Defendants in their written statement was based upon Sale Deed No.16174 dated 21.08.1980; but while drafting the said written statement, in preliminary objections, inadvertently and due to typographical error, the words “Exchange Deed No.8873 dated 03.06.1981” in paragraph No.2 were written instead of “Sale Deed No.16174 dated 21.08.1980.” Similarly, in paragraph No.3 thereof, again the words “exchange deed was mutated in the revenue department properly” were inadvertently written instead of the words “Sale deed was mutated in the revenue record properly.”

Likewise, on merits, in paragraph No.3 of the written statement, the same typographical error was repeated, where “which is even against the contents of exchange deed and mutation No.6322 dated 26.07.1981” was written instead of “mutation No.5748 dated 07.11.1980.” This fact finds further support from the remaining paragraphs of the written statement of the Petitioners/Defendants. He further submitted that mutation No.6322 dated 26.07.1981 has not been sanctioned till date by the Revenue Department.

Barrister Ch. Imran Hassan Ali, ASC further submitted that on account of the aforesaid typographical errors and mistakes, the Petitioners filed an application before the learned trial Court, which was contested by

W.P.No.1975 of 2022

Respondents, but was dismissed vide impugned order dated 05.10.2019. The Petitioners then filed a civil revision before the learned District Judge against the said order, which was also dismissed. Learned counsel submitted that both the learned Courts below, while passing the impugned orders, failed to properly exercise their jurisdiction. Further submitted that Petitioners’ Application seeking amendment in written statement was wrongly declined by the learned Courts below because Order VI Rule 17 CPC provides that 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. Learned counsel in support of his arguments placed reliance on the judgments reported as “KARACHI DOCK LABOUR BOARD versus Messrs. QUALITY BUILDERS LTD.” (PLD 2016 SC 121), “MUHAMMAD ZAHOOR and another versus LAL MUHAMMAD and 2 others” (1988 SCMR 322), “Mst. GHULAM BIBI AND OTHERS versus

SARSA KHAN AND OTHERS” (PLD 1985 SC 345), “AHMAD KHAN

versus RASUL SHAH AND OTHERS” (PLD 1975 SC 311) and “Mirza BASHIR AHMAD and another versus M.C. NAROWAL and 11 others”

(1987 MLD 2492).

II. RESPONDENTS’ SUBMISSIONS

3.Conversely, learned counsel for the Respondents Mr. Ajam Naz Malik, ASC has vehemently objected to the maintainability of this Petition

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on the ground that the Respondents initially instituted a civil suit before the Civil Judge, Rawalpindi, on 19.01.2013, wherein the Petitioners filed written statement admitting the lawful and proper execution of the Exchange Deed No.8873.

Subsequently, the Petitioners filed an independent suit for cancellation of the same Exchange Deed; on 20.04.2016; whereupon the Respondents filed an Application under Order VII Rule 11 CPC, which was allowed and the plaint was rejected by the Civil Court vide order dated 12.10.2018. Learned counsel further submitted that against the said order, the Petitioners preferred an appeal which was dismissed by the Additional District Judge, Rawalpindi vide judgment dated 15.01.2019; against which the Petitioners filed a civil revision before this Court, which met with the same fate vide judgment dated 30.06.2021. Learned counsel has pointed out that during the aforesaid proceedings the Petitioner filed an Application under Order VI Rule 17 CPC in the Respondents’ suit seeking amendment in the written statement attempting to substitute the term “Exchanged Deed” with “Sale Deed” despite their previous clear admissions. He submitted that the learned Courts below have rightly exercised discretion in declining the amendment;

otherwise it would prejudice the Respondents’ case and change the complexion of the defence. Learned counsel in support of his arguments placed reliance on the judgments reported as “KHALID SIKANDAR versus ADDITIONAL DISTRICT JUDGE, KAMALIA and others” (2020 YLR Note 01), “Mian AWDAL versus MUHAMAMD JAN KHAN and 4 others” (2009 CLC 40), “ABDULLAH KHAN through LRs versus MUHAMMAD EISA

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KHAN and others” (2009 YLR 2356), “Mian TARIQ AZIZ versus Mst.

GULNAZ JAVED and others” (2007 MLD 1244) and “Syed SHAUKAT ALI SHAH Versus ADDITIONAL DISTRICT JUDGE, Camp at Shakargarh, District Narowal and 20 others” (PLD 2003 Lahore 192).

4.Arguments heard. Record perused.

III. DETERMINATION BY THE COURT

5.The case revolves around the concurrent findings of the learned Courts below regarding rejection of application under Order VI Rule 17 CPC seeking amendment in the written statement. The learned trial Court while passing the impugned order dated 05.10.2019; has observed that:

“It is worth mentioning here that amendment is now allowed as reward for indifference or negligence or where they are prejudicial to the rights of the adverse party or place him at an unfair advantage, or where the rights of third person are injuriously affected. The basic rule of amendment in written statement is that the defendant should not be allowed to make out new case. Hence, for what has been discussed above the proposed amendments through petition in hand are hereby declined and petition is dismissed. ...”

Whereas the learned Appellate Court while passing the impugned order/judgment dated 13.02.2020; has mentioned that:

“Since the Petitioner sought amendment on the basis of typing mistake but this reasons is against the logic as the proposed amendment was founded on words and figure. The proposed amendment would change the very nature of assertion and plea of the parties. Since already the plaint of the petitioner

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regarding the same exchange deed had been rejected and it is settled law that what cannot be done directly, cannot be allowed to be done indirectly.”

6.A careful perusal of the record reveals that the Petitioners’ defence throughout has been premised upon Sale Deed No.16174 dated 21.08.1980, which forms the foundation of their title and possession. The reference to Exchange Deed No.8873 dated 03.06.1981 appears only as an inadvertent typographical error in certain paragraphs of the written statement. No new plea is being introduced nor any previous admission withdrawn; rather, the Petitioners merely seek to correct the misdescription of the document to avoid future ambiguity. The Respondents would not be prejudiced thereby, as the factual position remains unchanged. For ready reference Order VI Rule 17 CPC is reproduced as under:

“17. Amendment of pleadings. 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.”

The bare perusal of Rule 17 made it crystal clear that the refusal of the Courts below to allow such limited and necessary amendment, despite clear statutory permission under Order VI Rule 17 CPC, amounts to material irregularity and failure to exercise jurisdiction vested in them by law.

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7.It is settled principle that amendment of pleadings should ordinarily be allowed if it is necessary for determining the real question in controversy between the parties and does not change the complexion of the case or cause prejudice to the opposite side. The jurisdiction to allow amendment is wide and intended to advance the cause of justice rather than to defeat it.

Therefore, the proposed amendment if essential for clarification of pleadings and does not alter the fundamental character of the case, it should be permitted even at an advanced stage of the proceedings. Reliance in this regard is placed on the judgments of the Supreme Court of Pakistan reported as “Haji SULTAN ABDUL MAJEED (DECD) through Mehboob Sultan and Habib Sultan and others versus Mst. SHAMIM AKHTAR (DECD) through Mah Jabeen and others” (2018 SCMR 82), “DAUSA and others versus PROVINCE OF PUNJAB and others” (2016 SCMR 1621), and “LAHORE DEVELOPMENT AUTHORITY and others versus SULTAN AHMAD and another” (2007 SCMR 1682). So far as the case laws relied upon by learned counsel for the Respondents in support of his contentions, they are distinguishable from the facts of this case; as each and every case has its own facts and circumstances, hence, cannot be relied upon. The concurrent findings of the learned Courts below, therefore, cannot be sustained. Their approach was overly technical and contrary to the settled principle that procedural rules are handmaids of justice and not its mistress. The object of pleadings is to define the issues, not to penalize a party for a bona fide clerical error.

W.P.No.1975 of 2022

8.Resultantly, this writ petition is allowed. The impugned orders dated 05.10.2019 and 13.02.2020 passed by the Courts below are set aside. The Petitioners’ application under Order VI Rule 17 CPC for amendment in the written statement is allowed, subject to payment of costs of Rs.10,000/- to the Respondents. The amended written statement shall be filed within fifteen

(15)days of first appearance before the trial Court, which shall decide the suit expeditiously preferably within three (03) months positively.

(JAWAD HASSAN)

JUDGE

Approved for Reporting.

JUDGE

[email protected]