Fareed Khan etc Vs Gul Daraz etc

I

PESHAWARHIG H COURT AB BOTTABAD

BENCH

JUDICIAL DEPARTMENT

JUD GMENT SHEET

Writ Petition No. 912-A/2021 Date of hearin g: 16.01.2023 Petitioner (Fareed Khan etc.) By Mr. Ahsan Aman Khan, Advocate.

Respondents (Gul Daraz etc.) By Hafrz Muhammad Naseem Khan, Advocate.

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FAZAL SUBHAN .J.-B y way of this writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (constitution) the petitioners have prayed for as following; -

"It is, therefore, most humbly prayed that on acceptance of the instant Wril Petitoin, the impugned judgment and order passed by the learned Civil Judge-XI, Mansehra dated 24.05.2021 and the judgment and decree passed by the learned

Additional District JudgeJI, Mansehra dated 15.07.2021 maY please be declared as wrong, illegal, against the law and facts' arbitrary, fanctful, PerYerse, against the material available on the record hence being uncotxstitutional, be set aside and the application for amendment filed by respondent No. I maY please be dismissed with costs throughout or anY other writ, order or relief as this Honourable Court deems fit and aPProPriate in the circumstances of the case, may also be issued/passed" .

2.Brief facts of the instant case are that respondent No. 1/plaintiff filed a suit for declaration etc. in respect of specific Khasra numbers, fully described in the heading of plaint, and challenging entries in the revenue record made on the basis of mutation No.

27907 attested on 22.12.1945. The petitioners/defendants were summoned who put appearance and contested the suit. The respondent No. I submitted an application for better statement which was also replied by the

petitioners and leamed trial court allowed the respondent No. 1 to file better statement. The leamed trial court after framing of issues directed the parties to produce their evidence and during the course of evidence case management proceedings were started. In the meanwhile respondent No. I submitted an application for amendment of plaint which was duly replied by petitioners and the learned trial court allowed him the relief prayed in the application. Aggrieved from the impugned judgment the petitioner preferred a Revision Petition in the court of leamed District Judge, ? Mansehra which was entrusted to the court of leaned Additional District Judge-II, Mansehra for its disposal, and after hearing arguments of parties, their revision petition was dismissed vide judgment and decree dated 15.07.2021.

Being aggrieved from the said order, the petitioner have filed instant writ petition.

3.Arguments of leamed counsels for petitioner and leamed counsel for respondent heard and record gone through.

4 The controversy involved in the instant writ petition has emerged when during the pendency of the suit the respondent No.

l/plaintiff filed an application for amendment of plaint. Record transpires that Gul Daraz respondent No. l/plaintiff instituted two separate suits, titled " Gul Daraz Vs Fareed Khan etc." bearing No. 161/1 of 2015 and " Gul Daraz Vs Collector Mansehra etc. " bearing No. 12611 of 2019. The second suit was rejected by the court of Senior Civil Judge, Mansehra, on the ground that as the previously instituted suit is pending between the same parties and in respect of the same subject matter, therefore, the relief sought in the second suit, i.e. challenge to the pedigree table of Samandar s/o Inayat Ullah, can be challenged in the prior suit, after seeking amendment of plaint. The leamed trial court, keeping in view the fact that suit filed later in lime has mainly been rejected with the observations that the respondent No. 1/plaintiff can seek amendment of plaint with the relief

of challenging the pedigree table of late Samandar s/o Inayat Ullah, allowed the appiication for amendment and concluded as following:

"This court by invoking order VI Rule 17 CPC is inclined to allow the amendment to the extent of challenging the wrong entries made in the pedigree table or late Samandar s/o Anayat Ullah as well as by impleading the Collector Mansehra. The above amendment would by no stitch of imagination would change the nature of the suit rather the same would resolved the real controversy in a just and fair manner. The defendants/

Respondents would be at libertY to controvert the amendments so allowed by filing amended written statemenl and lo cross examine any witness or record so produce in support during evidence.

5.Record reveals that leamed revisional court while deciding the revision petition, has concurred to the order of trial court allowing the desired amendment and has rightly refened to the rejoinder submitted by the

respondent No.l/plaintiff wherein he has shown his grievance to the preparation of alleged wrong pedigree table of Samandar, who as per his averments was survived by a son Gul Rehman and daughter Mst. Dawa Jan but the pedigree table produced by the revenue official during his evidence has shown Samandar as issueless. The very first para of the original plaint reveals that respondent No.l/plaintiff has claimed that one Inayat Ullah s/o Munib Khan was his predecessor, as well as of proforma defendants. Similarly, in para 2, it is contended that the said Inayat Ullah was survived by four sons, namely Shah Zaman, Mir Zaman, Samandar and Ghulam Khan. In response to the above averments of the plaint, the petitioner/defendants have not denied the ownership of Inayat Ullah but asserted in reply to para 2 of the plaint that three sons of Inayat Ullah, namely M\t Zama\ Samandar and Ghulam Jan had died issueless.

The above response had prompted the respondent No.1/plaintiff to file an application

for filing replication, and after permission, he filed the same, and denied the averments o[ written statement that Sher Zaman, their predecessor had died issueless. Para 6 of their replication relating to the amendment is reproduced below:-

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6 Thus, from the pleadings of the pafties, it is evident that the actual controversy between the parties is as to whether Samandar died issueless or he left a son and a daughter, as mentioned above, and as to whether they (son and daughter ofSamandar) died issueless and their share in the suit property devolved upon the respondent No. 1 /plaintiff.

7.Order VI Rule 17 CPC has laid the fundamental principles, for allowing amendments in the pleadings. The relevant provlslon ls reproduced for better a understanding and convenience, as under:- "Or. 6 R. 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 iust, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversY between the parties.

Provided that no apPlication for amendment shall be allowed after the trial hos commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial".

8.The said provision, on careful analysis, gives ample powers to the court to allow amendments in the pleadings to conclusively and effectively decide the controversy between the parties. From the above reproduced background of the case, there is no doubt in my mind that the proposed amendment was not only just but also necessary to resolve the actual controversy between the parties, however, it has been noticed that after permission of amendment, the respondent No.1/ plaintiff has drastically changed the entire complexion of the suit and instead of adding the relief regarding challenging the pedigree table of Samandar in the plaint and adding collector Mansehra as a party to the suit, he submitted all together new

plaint, which is not permissible under the ibid law, hence, this writ petition is partially allowed. The impugned orders passed by the leamed Civil Judge Mansehra dated 24.05.2021 and that of leamed Additional District Judge-II, Mansehra, are maintained to the extent of proposed amendment, however, the amended plaint being not in accordance with the directions of the leamed Civil Judge Mansehra, is hereby rejected/cancelled and the respondent No.1 plaintiff is directed to submit a plaint by only adding a para in respect of challenging the pedigree table of Samandar and adding collector Mansehra as party to the original plaint.

Announced

Date of writing judgement

JUDGE