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1992 M L D 1257

 

[Supreme Court (AJ&K)]

 

Present: Sardar Said Muhammad Khan, CJ., Sardar Muhammad Ashraf Khan and Basharat Ahmad Shaikh JJ

 

MUHAMMAD IQBAL‑‑‑Appellant

 

versus

 

MIRZA BEGUM and 2 others‑‑‑Respondents

 

Civil Appeal No.21 of 1991, decided on 26th December, 1991.

 

(On appeal from the judgment of the High Court, dated 9‑7‑1990 in Civil Revision No.51 of 1989).

 

Per Basharat Ahmad Shaikh, J‑

 

Charan Das and others v. Amir Khan and others AIR 1921 PC 50; Topan Dam v. Tharia Ram AIR 1934 Lah. 412; Karamat Alt v. Muhammad Yunus Haji PLD 1963 SC 191; Md. Zahoor Ali Khan v. Mst. Thakooranee Rutte Koer 11 MIA 468; Ahmad Din v. Muhammad Shaft PLD 1971 SC 762; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345;Balkaran Upadya v. Gaya Din Kalver AIR 1914 All. 80; Kuppan Chettiar v. TA. Kesavan AIR 1954 Trav: Co. 30; Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100; SA.S. Lakhsmanan Chettiar v. T.K. Kuruvilla AIR 1961 Ker. 169; Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others AIR 1957 SC 363; Rangayya Gowder v. Narayanaswami Gowder 1958 Ker LJ 638; LJ. Leach and Co. v. Messrs Jardine Skinner and Co. AIR 1957 SC 357; Raj Muhammad v. Munshi Khan P L D 1989 SC AJ&K 56; Ghulam Haider v. Qazi Abdul jam PLD 1982 AJ&K 128; Sodhi Lal Singh v. Firm Lala Bihari Lal Lakshari Mal AIR 1937 Lah. 895; Muhammad Arshad Khan v. Murad Khan PLD 1965 Pesh. 225; Wazir Muhammad v. Abdul Aziz 1982 SCMR 189; Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Secretary to the Government of W.P. v. Oazi Abdul Kafeel PLD 1978 SC 264; Noor Muhammad v. Jahangir Ali PLD 1987 Lah. 473; Jasmir Singh v. Rehmatullah and others 7 P.R. 1896; Jalal Din and others v. Oasim Din and others 62 P.R. 1914 AIR 1914 Lah. 263; Muhammad Sadiq v. Abdul v. Abdul Majid ILR 33 All. 616; Sevugan Chetty v. Krishna Aiyangar ILR 36 Mad. 378; Abdul Ghani and others v. Muhammad Salim 1986 CLC 1217; Hashmat Ali v. Sh. Hafizullah PLD 1956 BJ 33; Muhammad Latif v. Lad Khan PLD 1979 SC (AJ&K) 123 and Ghulam Nabi v.’Mst. Hussain Bibi PLD 1981 SC (AJ&K) 42 ref.

 

Jan Muhammad v. Muhammad Munsif PLD 1986 SC (AJ&K) 98 rel.

JUDGMENT

 

BASHARAT AHMAD SHIEKH, J—This appeal relates to the question of amendment in a plaint.

 

Muhammad Iqbal filed a suit for possession on the basis of right of prior purchase in the Court of learned Sub‑Judge Dodyal on December 19, 1988. The suit land was sold by Mst. Wahaboo who died immediately after the execution of the sale‑deed. Mst. Mirza Begum, daughter of Mst. Wahaboo, also instituted a suit for declaration seeking cancellation of the sale‑deed executed by her mother and in the alternative sought possession in exercise of right of prior purchase. She, however, omitted to sue for proportionate share of the vendor in the Shamilat land. Her suit was instituted on 20th of December 1988. On 13th of June, 1989 Mst. Mirza Begum moved an application for amendment of the pleadings so as to include the share of Shamilat in para. 2 of the plaint as well as in the relief clause. No reason was incorporated in the application and it was only stated that . It was stated in the application that the proposed amendment would neither change the nature of suit nor would have the effect of setting up of a new cause of action. Defendant Muhammad Yunus objected to the prayer for amendment on the ground that if amendment is allowed nature of suit would change. Significantly the question of limitation was not raised by him. Subsequently, however, Muhammad Yunus agreed to allow amendment on the payment of Rs.100 as costs. The application for amendment was thereupon allowed. After about 2 months the suits filed by Mst. Mirza Begum and Muhammad Iqbal were consolidated.

 

After the consolidation of the suits Muhammad Iqbal filed a revision petition against the order passed by the learned Sub‑Judge on 8‑10‑1989 by which the amendment application had been allowed. It was contended in the revision petition that permission to include the share of Shamilat had been granted when the period of limitation prescribed for filing of a suit for prior purchase had run out and thus the order was illegal and unjust. It was also pleaded that he (Muhammad Iqbal) had been deprived of his right to raise the objection of partial pre‑emption which was available to him due to the omission of Shamilat from the plaint. A learned Single Judge in the High Court disposed of the revision petition in the following terms:‑

 

“It is undisputed that ordinarily a suit by partial pre‑emption is not maintainable. The proposition of partial pre‑emption being a mixed question of law and fact, is to be resolved by recording evidence of the parties. In present case, prima facie, the objection raised in the petition finds support from the record, but the petitioner is still vested with right to raise the objection of partial pre‑emption in his written statement. The trial Court is equally competent to decide the point at issue after recording evidence of the parties. Therefore, irrespective of allowing the amendment, the petitioner was within his right to assail the claim, including the omission of Mst. Mirza Begum to sue for whole of the property including Shamilat land. Therefore, the suggestion put forward by the learned counsel for the respondents finds weight. The petition is disposed of accordingly.”

 

Raja Muhammad Siddique Khan, the learned counsel for the appellant Muhammad Iqbal, contended that no amendment can be allowed after the period of limitation for filing a fresh suit has run out and that the High Court should have set aside the order passed by the learned Sub‑Judge. It was also contended that the observation made by the learned Judge in the High Court that the appellant herein would be within his right to raise objection of partial pre‑emption fails to take not of the fact that if an amendment is allowed it takes effect from the date of filing of the plaint and, therefore, the objection regarding partial pre‑emption would be futile if amendment stands. The learned counsel also vehemently contended that the plaintiff had been negligent in moving the amendment application because he applied for amendment after about six months had elapsed since filing of the suit.

 

Mr. Muhammad Yunus Surakhvi, the learned counsel for the respondents, vehemently contended that the question of limitation does not arise in respect of an amendment application. He submitted that Order VI, rule 17 of the Code of Civil Procedure lays down that amendment can be allowed at any stage which clearly means that the question of limitation has not relevancy once the requirements of rule 17 mentioned above are fulfilled in a given case. Both the learned counsel relied on a number of cases which I would notice in the later part of this judgment.

 

The appeal was initially heard by two of us but in view of the fact that judgments of this Court in some cases appeared to contain divergent views, the Bench was re‑constituted and the case was heard afresh after giving notice to the learned counsel appearing foe the parties.

 

The cases reflecting divergence of opinion are these: In Abdul Rehman v. Muhammad Sadiq (Civil Appeal No.38/MR/1987), decided on 3/1989 the application for amendment to include the share of Shamilat which had been omitted from the plaint was ordered by this Court to be dismissed on the ground of limitation as well as on account of negligence. In that case the respondent was unrepresented. However, in Raj Muhammad v. Munshi Khan PLD 1989 SC (AJ&K) 56, an observation in the nature of an obiter diets was made by this Court that in cases where omission is not intentional there was no doubt that the addition of Shamilat Deh land may be allowed even after the prescribed period of limitation. In Alam Din v. Alam Din PLD 1990 SC (AJ&K) 1, this Court held that if an application for amendment is made it cannot be rejected on the ground that limitation for filing a fresh suit has expired.

 

Under the Code of Civil Procedure amendments can be made under sections 152, 153 and rule 17 of Order VI. Section 152 is applicable in cases where clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from accidental slips or omissions can be at any time corrected by the Court. Section 153 empowers the Court to amend any defect or error in any proceeding in a suit. This power is also exercisable at any time. ‘ Rule 17 mentioned above relates to the amendment of pleadings and its phraseology may be usefully reproduced below:‑

 

“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.”

 

A reading of rule 17 shows that although the words `at any time’ used in sections 152 and 153 of the Code have not been used in this rule, it appears that the intention of the law‑maker is not any different. The use of words `at any, stage of the proceedings’ conveys the same meanings as the words `at any time’. Another significant aspect of this rule is that the rule is split into two parts. In the first part the Court is authorised to allow amendment in the pleadings and this power is discretionary. The other part lays down that `’ amendment necessary for the purpose of determining the question in controversy between the parties shall be made by the Court. In other words once it is found that an amendment is necessary as aforesaid the Court is bound to order the relevant amendment. The intention of the law‑maker clearly seems to be that technicalities should not be followed in such a way that it may result in miscarriage of justice. That being the purpose it is quite natural that rule 19 should have laid down that the power of allowing or directing an amendment would be available at any stage.

 

Rule 17 does not lay down any guideline which has to be followed by the Court while considering the question of amendment. It only lays down that if permission for amendment is granted the manner in which the amendment would be made and terms on which it would be allowed should be just. Since there are no guidelines, it has always been assumed by Courts that this power has to be liberally exercised. However, the question still remains as to what considerations should be kept is view while liberally considering a request for amendment. On this question there is consensus of the superior Courts that amendment can be allowed if two conditions are fulfilled. Firstly that the proposed amendment should not change the nature of the suit and, secondly, that new cause of action is not thus set up. From a perusal of the case‑law, which I will be noticing later on, on the subject it appears that at the early stages the view held by some of the superior Courts was that limitation plays some part which deciding the prayer for amendment. However, the trend in the last fifty years or so generally has been that delay is not a determining factor in the matter of amendment. To my mind the correct law is that once the two conditions, as aforesaid, are fulfilled amendment has to be allowed, delay or negligence notwithstanding.

 

Rule.17 does not visualise that there will be limitation for making an amendment. The limitation prescribed in the Limitation Act relates to the institution of the suits, appeals etc. Section 3 of the Limitation Act lays down that every suit instituted, appeal preferred and application made after the period of limitation shall be dismissed. But the Act, does not fix any time for moving an amendment application. In section 22 of the Limitation Act it is specifically laid down that if a new plaintiff or defendant is substituted or added after the institution of the suit the suit shall be deemed to have been instituted, as regards him, when he was made a party. It is significant that no such provision has been made in respect of an amendment.

 

Although, as already noted, there are no restrictions in phraseology of rule 17, the superior Courts have laid down different guidelines and principles on the question of amendment. I have noted above two of these guidelines. Some of the other broad principles which have attained recognition so far are that:

 

(a) amendment should be allowed where there has been a clerical error or bona fide wrong description of the property;

 

(b) amendment should be allowed where the concerned party has acted in good faith but refused where the application is mala fide;

 

(c) it should not matter that the omission arose from negligence or carelessness.

 

I may now advert to the case‑law on the subject. I think any survey of case‑law on this subject should begin with the case of `Charan Das and others v. Amir Khan and others’ AIR 1921 PC 50, which judgment lays down that power of amendment should not as a rule be exercised where its effect is to take away from defendant a legal right which accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case. As to what is meant by “taking away from a defendant a legal right which has accrued to him by lapse of time” is another aspect of the matter which needs detailed examination. It may be stated that, as would appear from the cases to be noticed later that the rule laid down in this judgment is no longer being followed. It is also significant that the view of the Privy Council in this case was that amendment could in special circumstances be allowed even to defeat a right which had accrued by lapse of time.

 

In “Topan Dass v. Tharia Ram” (AIR 1934 Lah. 41;) the facts of the case were that the suit was filed by a joint Hindu family against another joint Hindu family to recover a debt out of balance struck and subsequent dealings. It was stated in the plaint that the defendant’s family owed them Rs.1,391 but they deducted Rs.1,340 and sued for sum of Rs.51 only alleging that there was an agreement between them in accordance with which the sum of Rs.1,340 which was due to the defendant by a third party, was to be credited in the account sued upon. The suit was resisted on the ground that there had been no such agreement. The suit was dismissed by the trial Court finding that the agreement was not proved and holding that the plaintiffs should have sued for whole account due upon the accounts. The first appellate Court accepted the plaintiffs’ appeal and ordered the trial Court to allow the plaintiffs to amend the plaint so as to make the suit one for Rs.1,391. The plaint was accordingly amended for Rs.1,391 but the suit was dismissed holding that it was barred by time. This decision was reversed by the District Judge. The High Court upheld the judgment of the District Judge on the ground that the amendment related back to the institution of the suit. It was held that the amended plaint added no new claim and suit was continued upon the same cause of action.

 

In “Karamat Ali v. Muhammad Yunus Haji” (PLD 1963 SC 191) the facts were that a declaratory suit by an out‑of‑possession plaintiff did not contain a prayer for possession. The Supreme Court of Pakistan allowed the plaintiff to amend the plaint at the appeal stage in the circumstances that the suit for possession had become barred in the meantime. This was done in pursuance of the principle that the nature of the suit is not altered by addition of prayer for possession.

 

The facts of the case were that the property in dispute appertained to a `nim howls’ tenancy in the name of the defendants in the suit. This tenancy was auctioned in execution of a rent decree. The plaintiff purchased the property in the auction in November 1936. The defendants at first attempted to have the sale set aside in 1937 but failed. Then two of them filed a title suit claiming `raiyati’ and `under raiyati’ interests in lands under the `nim howls’. This suit was also dismissed in 1941. The plaintiff filed a suit for the declaration of their title by auction‑purchase and for khas possession of the homestead portion after dismantling the huts standing thereon. They obtained a contested decree against one of the defendants and ex parte against the rest. After a protracted litigation the auction‑purchaser filed a suit securing a declaration that Debt Settlement Board which had originally given an award in favour of the defendants had wrongly assumed jurisdiction in the case and that the notices had been fraudulently suppressed in collusion with the Chairman of the Board who had himself various litigations with the plaintiffs. No further relief by way of recovery of possession was claimed. The suit was decreed by the trial Court and it was held that the Board had no jurisdiction and that the notices had been suppressed, as alleged. The findings on both the points were upheld by the first appellate Court. However, in the second appeal the High Court set aside the decree in favour of the plaintiff and held that firstly the suit did not lie and secondly that the finding regarding suppressing of notices was unsustainable. Both these findings were set aside by the Supreme Court in the judgment under reference and the Supreme Court then proceeded to examine the question whether the suit was barred under section 42 of the Specific Relief Act. It was noted that the tenant was in possession when the suit was filed and, therefore, delivery of possession was a necessary consequential relief which should have been claimed in the suit. It‑was contended that the claim of the appellant to possession had clearly become barred by limitation and therefore power of allowing amendment could not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. The argument was repelled and Hamood‑ur‑Rehman, J (as ht; then was) speaking for Court observed as follows:‑

 

“The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor. Ali Khan v. Mst. Thakooranee Ruttee Koer 11 M I A 468 and Charan Des and others v. Amir Khan and others AIR 1921 PC 50. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it , would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.

 

The present, in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when the auction‑purchasers purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for khas possession and to pay the additional court‑fees as in a suit for possession but upon the condition that, they should pay to the respondents appearing in this appeal their costs both in this’ Court as well as in the Courts below as a condition precedent.”

 

It may be noted that the Supreme Court went as far as granting permission to pay additional court‑fees and even remanded the case for the purpose of effectually implementing its permission for amendment of the plaint.

 

Ahmad Din v. Muhammad Shaft (PLD 1971 SC 762). In a declaratory suit the plaintiff failed to pray for consequential relief by way of possession, the Supreme Court of Pakistan held that the suit could not fail merely by reason of the fact that consequential relief by way of possession had not been claimed and it was open to the Courts to allow the plaintiff to amend the plaint by adding a prayer for possession. However, this principle is applicable to a suit which was originally filed within the period of limitation.

 

On this subject the views of Supreme Court of Pakistan are more authoritatively and explicitly enunciated in Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345). The question before the Supreme Court of Pakistan was whether the plaintiffs in the case should have been permitted by the High Court to amend the plaint so as to convert a suit for declaration as to ownership of the suit‑land into the suit for specific performance of contract of exchange involving the suit land. One of the objections which had been raised while resisting the grant of permission to amend the plaint was that when the application for amendment was filed in the Court a suit for specific performance could not have been filed by the plaintiff because of bar of limitation. After noting almost the whole case law available on the point of amendment, including the aspect of delay or limitation, the Supreme Court of Pakistan held that the expiry of limitation by itself was not to be treated as a bar when considering the question of amendment if the amendment was otherwise found to be necessary for the purposes mentioned in Order. VI, rule 17 of Civil Procedure Code. It was held that once the Court decides that amendment is necessary for the purpose of determining the real question the. Court is required by law to not only to allow the application made by a party in that behalf but is also bound to direct amendment for the said purpose subject to condition that nature of suit in so far as its cause of action is concerned is not changed by amendment. The Court also expressed the view that liberal view has to be taken for allowing amendment of plaint and other pleadings. This judgment clearly lays down that limitation cannot create a bar in allowing amendment.

 

I may now examine some cases from Indian jurisdiction. Balkaran Upadya v. Gaya Din Kalver (AIR 1914 Allahabad 80). There was a suit for sale upon a mortgage. The amendment was allowed by the trial Court. In the mortgage deed there was a stipulation that if the mortgagees failed to take possession under the deed or were disturbed in their possession they were to be entitled to sue the mortgagors for the recovery of their money. In the suit for recovery of money they were entitled to exercise one of the three alternative reliefs:

 

(a) `they might enforce their claim for money against the specified plot of land mortgaged with possession under the deed; .

 

(b) they might recover the money from the person or other property of the mortgagors;

 

(c) they might recover it from `zamindari share’ of one anna to which the specified land was allowed to appertain.

 

At the time of filing the suit, relief claimed by the plaintiffs was the recovery of the principal and interest by selling the specified plot of land set forth in the mortgage. A large number of defendants were impleaded in the suit besides the original mortgagors because there had been in the interval a number of transfers and the partition of the mahal in question. At a subsequent stage the plaintiffs applied for amendment in the plaint so as to enable them to’ ask the Court to give them a decree for recovery by sale of specified `zamindari share’ of the defendants and certain specified plots of land which they alleged the mortgagors had received in exchange for those set forth in the mortgage‑deed. The Allahabad High Court held that amendment should not have been allowed on account of bar of limitation. The relevant part in which this point was dealt with runs as follows:

 

“They brought this suit. on a deed which allowed them two or three alternative rights, and in the suit as framed they expressly claimed to enforce one of those reliefs only, namely, of the recovery of their money by sale of the specified plots mentioned in the instrument of mortgage. They are allowed in fact to amend their plaint ‘so as to change the relief by asking a decree against sale of `zamindari share’ and this was done after the period of limitation to enforce a simple mortgage of `zamindari share’ had expired. This, in our opinion, the plaintiffs should not have been permitted to do and even though the point was not pressed in the lower appellate Court, it seems to us that we are bound to take notice of it in second appeal inasmuch as a question of limitation is involved. In our opinion the amendment of the plaint should not have been allowed and the decree passed in the sale of `zamindari share’ cannot be sustained.”

 

This judgment lays down that amendment should not be allowed to change the relief when out of three reliefs available to the plaintiff he had already exercised his choice and let the other two become barred by time.

 

Kuppan Chettiar v. TA. Kesavan (AIR 1954 Trav.‑Co. 30). The plaintiff in the case brought a suit for recovery of amount for which drafts were drawn by him and which was part of amount due to him in connection with dealings with the defendant. The plaintiff prepared five demand drafts for Rs.5,200 out of a total of Rs.14,283.9.5 and cashed them at the Bank. As the defendant refused to honour the drafts when the Bank presented them to him, the plaintiff brought a suit for recovery of Rs.5,200 for which the drafts had been drawn. It was stated in the plaint that for the balance due to him the plaintiff would file a separate suit. The defendant raised an objection in the written statement that he had not agreed to the plaintiff drawing demand drafts on him. Thereupon the plaintiff filed an application for leave to amend the plaint seeking to base his cause of action on the accounts also and also to recover the entire amount alleged to be due to him and not only the amount recovered by drafts. The application was dismissed by the trial Court and a revision was filed by the plaintiff. The High Court partly accepted the application and allowed the plaintiff to amend the plaint so far as the amount of Rs.5,200 covered by the drafts was concerned and allowed him to base his cause of action on the accounts also. However, the prayer to include the claim for balance amount was refused. In respect of the Ist Part which was allowed it was held that it would not introduce entirely a new cause of action or fundamentally change the character of the suit. The refusal of the other part of amendment application was based on the reason that where the plaintiff deliberately elects to sue only for a portion of the amount alleged to be due to him and intentionally puts off claiming balance if by lapse of time the claim in respect of the balance has become barred by limitation he cannot be allowed to amend the plaint so as to include the claim for the balance amount.

 

This judgment highlights the proposition that fate of an amendment application essentially depends on the questions whether an entirely new cause of action is being set up or whether character of the suit would be fundamentally changed.

 

Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. (AIR 1948 PC 100). In this, case the Privy Council held that an amendment of plaint introducing a new claim which would have been barred by limitation at the time when leave was sought cannot be allowed. The circumstances of the case were that in the suit out of which the appeal arose the plaintiff claimed against the defendants which was a company Rs. nine lac damages for breach of an agreement to employ its firm of which the plaintiff claimed to be a member as a managing agent. In the Court of appeal the plaintiff sought to raise a point that since the defendant‑company had recognized the firm. of which the plaintiff was a member (B.D. Amin and Company) as managing agent a few years later it must be inferred that the defendant‑company had entered into an agreement with said B.D. Amin and Company and the plaintiff to employ them as managing agents on the terms of the agreement on 7th December 1907. The relevant part, dealing with point of amendment, may be reproduced below:‑

 

“To this contention it was pointed out that in the plaint there was no plea of estoppel against the company and no allegation of any implied agreement between the company and the appellant, and that damages ‑‑ were claimed only for breach of the agreement of 7th December, 1907. Thereupon the appellant asked for leave to amend the plaint challenging an implied agreement made in 1922 between the company on the one hand and B.D. Amin and the appellant on the other, and claiming damages for the breach of such agreement. The Court refused leave to amend, and the appellant has argued before the Board that such refusal was wrongful. In their Lordships’ view the Court of appeal in India was right to refuse leave to amend, since at the time when leave to amend was sought any claim under the alleged implied agreement would have been barred by limitation.” .

 

The view expressed in this case is that a new claim cannot be introduced after the lapse of limitation. It is the same thing as saying that a new cause of action cannot be set up.

 

SA.S. Lakshmanan Chettiar v. T.K. Kuruvilla (AIR 1961 Kerala 169). The plaintiff brought a suit for recovery of money due under hundis assigned to him by his brother and it was found that hundis could not be admitted in evidence as they were insufficiently stamped. The defendant admitted in the written statement that money was originally advanced to him by the plaintiff. Thereupon the plaintiff applied for permission to amend the plaint so as to base his claim on the money advanced by him. This application made the suit based on original advance as barred by limitation. The trial Court allowed the amendment. A revision petition to challenge the order of the trial Court was dismissed by the High Court. It was held that in such a case the 4mendment does not really introduce a new case and that the defendant does not have to meet a new claim set up for the first time after expiry of the period of limitation. In reaching this conclusion the learned Judge of the High Court relied on `Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others’ AIR 1957 SC 363, 1958 Ker L1 638, Rangayya Gowder v. Narayanaswami Gowder and Charan Das and others v. Amir Khan and others (AIR 1921 PC 50).

 

L.J. Leach and Co. v. Messrs Jardine Skinner and Co. (AIR 1957 SC 357). The plaintiffs in the case filed a suit in the Bombay High Court for damages for conversion. The suit was decreed by a Single Bench of that Court but his judgment was reversed on an inter Court appeal by a Division Bench. The judgment of the Division Bench was challenged before the Supreme Court of India. The learned Judges agreed with the findings of the Division Bench that on the pleadings and on the evidence in the suit that the claim for damages on the footing of conversion must fail. But in the meanwhile the plaintiffs applied to the Supreme Court for amendment of the plaint by raising, in alternative, a claim for damages for breach of contract for non‑delivery of the goods. The application was resisted by the defendants (respondents in the Supreme Court) on the grounds that amendment introduced a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiffs had ample opportunity to amend their plaint but they failed to do so, and that owing to lapse of time the defendants would be seriously prejudiced if this new claim were allowed to be raised. The application for amendment was accepted by the Supreme Court by holding that:‑

 

“The plaintiffs do not claim any damages for wrongful termination of the agreement, Exh.A by the notice dated 13‑6‑1945. What they claim is only damages for non‑delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Exh.A., A, claim based on a clause 14 thereof cannot be said to be foreign to the scope of the suit. Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in’ the alternative, entitled to claim damages for breach of contract by defendants in not delivering the goods.”

 

After allowing the amendment their appeal wag allowed, the decree under appeal was set aside and the suit was remanded for re‑hearing to the trial Court.

 

Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (AIR 1957 SC 363). In this case it was held by the Supreme Court of India that where a plaintiff seeks to amend his plaint by setting up a fresh claim which since the institution of the suit had become barred by limitation the amendment must be refused, but upheld the amendment allowed by the subordinate Courts and the Court reached the conclusion that the amendment did not really introduce a new case and it was clear that the defendant had not been taken by surprise nor did he has to meet a new claim set up for the first time after expiry of the period of limitation. The facts of the case were that the plaintiff obtained a decree for ejectment of the defendants which was maintained up to the level of the Supreme Court. The plaintiff `made an application for execution of the decree but was resisted or obstructed by the present appellant in obtaining the possession of the said property. He then made an application under Order 21, rule 97, Civil Procedure Code complaining of such resistance but the application was dismissed. The plaintiff thereupon instituted a suit under order 21 rule 103, Civil Procedure Code that he was entitled to recovery of possession of the suit property from defendant No.1 who filed an application that he was not a party to the earlier suit. A preliminary issue was struck which raised the question whether the suit was tenable against the appellant. When the trial of that issue begin an application was made on behalf of the plaintiff for permission to give further and better particulars of the claim made in the plaint and for that purpose the plaintiff wanted to insert a new paragraph and few sentences in another paragraph. This application was rejected by the Civil Judge who also dismissed the suit on the ground that no case was made out against defendant No.1, who was not a party to the earlier suit in which a decree of ejectment has been passed. On an appeal having been taken to the High Court of Bombay the amendment application was accepted by the learned Judge of the High Court. While doing so it was observed:‑‑

 

“We realise that by doing what we propose to do we may deprive defendant 1 of a very valuable right which he claims he has acquired, namely, that of pleading a bar of limitation against the amended plaint, but we are guided more in this matter by regard to the principles of substantial justice and we think that if we can make sufficient compensation to the first defendant by making drastic orders of costs in his favour and against the plaintiff, we shall not be doing any injustice to him.”

 

The amendment allowed by the High Court was upheld by the Supreme Court after taking note of their judgment in L.J. Leach and Co.’s case AIR 1957 SC 357. It was held that the amendment did not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise nor did he have to meet with new claim for the first time after the period of limitation.

 

There are a number of judgments in which it has been laid down that an amendment of plaint introducing a new claim cannot be allowed if the claim has become barred by time. One such judgment of Privy Council in Bhagwanji Morarji Goculdas has already been seen with some detail.

 

In “Raj Muhammad v. Munshi Khan” PLD 1989 SC (AJ&K) 56 it has laid down that in a pre‑emption suit substituting or adding a new qualification of a pre‑emptor cannot be allowed if the time prescribed has expired.

 

In “Ghulam Haider v. Qazi Abdul Jahl PLD 1981 AJ&K 128, the amendment seeking to introduce a new ground in suit of pre‑emption after the expiry of limitation was disallowed.

 

In my view these judgments fall in the same category of judgments which, as already noted, lay down the undisputed rule that an amendment which has the effect of changing the nature of the suit or of introducing new cause of action cannot be allowed.

 

It is a common occurrence that a plaintiff either omits to mention a part of the suit land or misdescribes it. This happens in pre‑emption suits just as it happens in other suits relating to property and in_ such situations amendment applications are commonly made. The case‑law relating to this category of cases is also instructive.

 

The facts in “Sodhi LAI Singh v. Firm Lala Bihari Lai ‑ Lakshmi Mal” (AIR 1937 Lah. 895) were that in a suit under Provincial Insolvancy Act there was a misdescription of land sold in execution of a decree. In the plaint the description of the land was as follows:‑

 

“Agricultural land situate in Mouza Manawan, sold on 17th December 1935 of decree obtained by Mst. Pritam Kaur against the appellant.”

 

At a subsequent stage an application for amendment was moved seeking to substitute the name of the Mouza. The High Court upheld the amendment allowed by the trial Court by holding that the name of decree holder, name of the Court and the date on which the decree was made was correctly made but the only mistake was the name of village. The Court held that the amendment allowed by the Court below did not introduce a new cause of action or alter the nature of the case.

 

“Muhammad Arshad Khan v. Murad Khan” (PLD 1965 Pesh. 225). In a pre‑emption suit the plaintiff failed to include one Khasra number and misdescribed another. He applied for amendment when the limitation had expired. It was held that the defect was of a formal nature and the plaintiff had been misled by wrong entries in the certified copies of the sale‑deed. Consequently the amendment prayed for was allowed. It was held that the application for amendment was being allowed as it was essential for determining the dispute between the parties apart from the consideration that plaintiff had been misled.

 

In “Wazir Muhammad v. Abdul Aziz” (1982 SCMR 189) the plaintiff did not mention in his plaint five Khasra numbers out of the land which was sought to be pre‑empted but the total area of the property to be pre‑empted and the particulars of the sale were correct. This omission was treated to be a case of partial pre‑emption and the relief was refused in spite of the fact that the plaintiff was ‑found to have superior right of purchase. However, the Supreme Court of Pakistan held that since the sale mutation which was sought to be pre‑empted identified the extent of the property to, be pre‑empted and correctly mentioned the mutation number and price, therefore, omission of some Khasra numbers was clerical and in consequential.

 

“Ghulam Nabi v. Sardar Nazir Ahmed” (1985 SCMR 824). In a pre -emption suit one Khasra number was omitted from the claim of pre‑emption and it was contended on behalf of the defendant that the suit was bad for partial pre‑emption. This objection was raised and an issue was also framed in respect of this objection, but when arguments had been heard and the case had been fixed for judgment an application was moved by the plaintiff for amendment of the plaint to correct the description and bring it in accord with the description of the subject‑matter in the sale‑deed. The trial Court rejected the application on the ground of delay and carelessness and dismissed the suit on the same ground, namely, that the suit suffered from defect of partial pre -emption. The Lahore High Court subsequently ordered that the suit be decreed after accepting the prayer for amendment of the plaint. The Supreme Court dismissed an appeal filed by the defendants and rejected the arguments that:

 

(a) the conduct of the plaintiff was patently negligent;

 

(b) the defendant had been put on notice about the defects in the plaint at the time of filing the written statement, yet he neglected to apply for amendment.

 

The Court held that from the very nature of the error in the description of the property it was clear that this omission was accidental and no part of the property was intentionally omitted from claim set up in the suit. It was also clear that the suit itself was brought in order to pre‑empt the sale as a whole because copy of the registered sale‑deed and the mutation pertaining to it had been filed in the Court. It was concluded that omission was accidental. Dealing with the argument that a valuable right had accrued to the other party the Court held that:

 

“We are unable to agree with the contention that any right had accrued in favour of the appellant on account of the errors which could not be taken away by means of the amendment of plaint.”

 

On the question of limitation, it was observed as follows:‑

 

“Similarly there is no question of the bar of limitation in the circumstances of this case as the suit having been brought within time qua the sale in the suit, mere supplying of omission in the description of the property does not attract the objection on the ground of limitation.”

 

In this judgment cases reported as “Keramat Ali and others v. Muhammad Yunus Haji (PLD 1963 SC 19t) and “Secretary to the Government of W.P. v. Qazi Abdul Kafeel” (PLD 1978 SC 264) were relied upon.

 

In “Noor Muhammad v. Jahangir Ali PLD 1987 Lah. 473 it was held that the Court has power to allow the amendment of plaint even if it had the effect of depriving the defendant of his right to plead limitation. This was also a case of pre‑emption. A particular `kills’ number of land was not mentioned in the circumstances that the same had not been included in copy of the registered sale‑deed. It was held that omission of `kills’ number was not intentional and could only be considered as accidental or through inadvertence. It was also held that the discretion in allowing the amendment of the plaint and the finding that the suit instituted by the plaintiff was not for partial pre -emption was correct.

 

There are a number of reported cases in which Shamilat land was omitted from the plaint and was allowed to be included after the prescribes limitation had expired. I would now advert to these cases. The first in time is “Jasmir Singh v. Rehmatullah and others 7 PR 1896. By this judgment a Division Bench of the Punjab Chief Court, Frizelle and Charrerji, JJ., disposed of five appeals in the circumstances that the first appellate Court had dismissed the suits for pre‑emption on the ground that sales included a share of Shamilat, and that as the plaintiff did not expressly sue for this in his plaint, he was really suing for less than what was sold which he could not legally do. The appeals were accepted by holding that the view taken by the first appellate Court was erroneous.

 

Frizelle, J. speaking for the Court observed:

 

“The dismissal of the suits would only have been justifiable if the plaints had expressly shown, or plaintiffs agent had expressly stated, that a share in the Shamilat was purposely excluded from the suits. There was no doubt that plaintiff sued for the whole of the properties covered by the deeds of sale, and if the plaints were not sufficiently clear on the subject, the statement of plaintiff’s agent clearly showed that it was the intention to sue for the Shamilat as well as the principal land, so that defendant was under no misconception in the matter. If the Divisional Judge thought the plaints defective, the proper course was to have ordered their amendment, but we do not think any amendment was necessary. None of the faults enumerated in section 53(b) of the Civil Procedure Code could be found with the plaints, and, therefore, they could not have been returned for amendment. Amendment only could have been made under clause (c), and this was practically done by the Courts ascertaining from plaintiff’s agent that the Shamilat also was claimed. Defendant certainly suffered no prejudice by no formal addition being made to the plaint in this respect.”

 

The view expressed in this judgment is that the suit for pre‑emption is to be dismissed if the plaintiff expressly shows that he did not intend to purchase the share in Shamilat. The Court held that in such a case even amendment is not necessary if it is stated by the plaintiff that it was his intention to sue ‘for Shamilat as well.

 

2. “Jalal Din and others v. Qasim Din and others” (62 P.R. 1914 = AIR 1914 Lah. 263). On 7th April, 1908 a property consisting of 41 Kanals 18 Marlas of land, the second storey of a house, share in a well and share of Shamilat was sold. A suit for pre‑emption was instituted on 30th of March, 1909, but in the plaint only 41 Kanals 18 Marlas of land was mentioned. On 12th May, 1909 plaintiff applied for permission to amend his plaint on the ground that had not intended to renounce any part of the property sold but had omitted the house because of a `Kitabi Ghalti’. Permission was granted by the Court and the house was added, but still share of well and of Shamilat was left out. This fact was pointed out by vendee’s pleader on 4th February 1910 and the plaint was returned for amendment on the same date. It was finally put in as fully amended on 16th February 1910. The trial Court held that making of these amendments after the expiry of ordinary period of limitation did not “bar the suit”. It ultimately decreed the suit. In the appeal filed by the vendees it was prayed that the suit should be dismissed as time‑barred because it was only after the expiry of the period allowed by law that the whole property was demanded and because in pre‑emption suits the whole bargain must be sued and not a part. The lower appellate Court overruled the objection by holding that omissions in the original and first amended plaint were merely due to carelessness, the plaintiffs intention from the beginning was to sue for the whole bargain and the character of the suit was not changed by the amendments. An appeal was taken to the Punjab Chief Court and was heard by a Division Bench (comprising of Johnstone and Shadi Lal, JJ.). The appeal was dismissed. Johnstone, J, speaking for the Court, observed at page 212 of the report that:

 

“In our opinion everything points to the conclusion that we have here merely a case of inadvertence and misdescription of property claimed. No doubt plaintiff offered only Rs.999 out of the Rs.1,365 stated as price in the sale‑deed, and, if he had offered this reduced sum on the ground that he only wanted part of the property, his suit would perhaps have failed; but nothing of this sort happened. He recognized Rs.1,365 as the price stated for the property he claimed, but urged that of it Rs.366 was fictitious; and from this it is clear that he wanted to take over the whole bargain.

 

Then again at page 213 it was observed as follows‑.‑

 

“Here, he says, by the lapse of a year, his clients had acquired a valuable right, pre‑emption is in its nature not a natural but an artificial right, and it was unjust to allow an amendment calculated to deprive appellants of the valuable right aforesaid. Arguments of this sort may have some validity in cases in which the defects in a plaint were intentional; but we can see in the action of the first Court here no injustice to appellants on a reasonable view of all the circumstances.”

 

In the next para of the report on the same page it was also highlighted that the real test was whether the omission was intentional or merely inadvertent. In support of this view the following cases were relied upon:

 

(1) Muhammad Sadiq v. Abdul Majid (ILR 33 All. 616);

 

(2) Sevugan Chetty v. Krishna Aiyangar (ILR 36 Mad. 378) and

 

(3) Jasmir Singh v. Rehmatullah (7 PR 1896).

 

The last mentioned case, namely, (7 P.R. 1896) (Jashmir Singh v. Rehmatullah) has been noted above.

 

The ratio of the judgment clearly is that if any property is inadvertently left out, amendment should be allowed irrespective of any question relating to limitation. It is also clear that this rule was applied in spite of the fact that the plaintiff in the case seemed to have acted negligently because he left out certain property when he first applied for amendment of the plaint.

 

In Abdul Ghani and others v. Muhammad Salim 1986 CLC 1217, a learned Single Judge of the Lahore High Court, Gul Zarin Kiani, J. held that the share of Shamilat omitted from the claim of pre‑emption was rightly allowed even after the expiry of limitation because this amendment did not change or totally alter the character of action and would be readily granted by the Courts. The circumstances before the learned Judge were that the suit for pre‑emption was filed on 22‑2‑1974 for pre‑empting the suit property which was sold on 22‑2‑1973 but the share of Shamilat, which had been duly sold, was not included in the claim. The defendants moved an application and brought this defect in the notice of the Court. They also raised an objection in their written statement that the suit was not maintainable on the ground of partial pre‑emption. On 15th of July, 1974 the plaint was amended to implead a rival pre‑emptor but the plaintiff without proper leave of the Court included the share of Shamilat in the plaint. Defendants objected to this unauthorised amendment which was accordingly deleted on 21‑12‑1975. More than six months later on 30‑7‑1976 plaintiff put in an application under Order 6, rule 17 of the Civil Procedure Code seeking permission for amendment of the plaint to include the share of Shamilat which had been, as claimed, inadvertently omitted by him in the original plaint. This application was dismissed on 24‑3‑1977 but the Additional District Judge accepted a revision petition filed by the plaintiff and granted permission to make the requisite amendment. This order of the Additional District Judge was challenged by the vendees of the suit property through a constitutional petition. The High Court dismissed the petition and upheld the orders of the Additional District Judge. In doing so the learned Judge relied on the cases of Jasmir Singh v. Rehmatullah (7 Punjab Record 1896), Jalal Din and others v. Qasim Din and others (62 Punjab Record 1914 = AIR 1914 Lah. 263) and also on already referred recent judgment of the Supreme Court of Pakistan reported as Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345). Apart from holding that by the proposed addition nature or character of the claim as set forth in the plaint was not in any manner altered, the learned Judge also held that mere fact that the plaintiff did not take prompt action when defect was brought to the notice of the Court was hardly a ground to refuse an amendment which otherwise was necessary for proper decision of the pre‑emption suit. The learned Judge also observed that pre‑emption right was a creation of a statute and could not be treated by the Courts differently form other rights. On the last mentioned point the view of this Court is also the same as expressed in Civil Appeal No.9 of 1990 Nazar Muhammad v. Raja Muhammad Nazir. In that judgment speaking for the Court, Sardar Said Muhammad Khan, C.J., observed as follows:‑

 

“It may be observed that if a party is otherwise entitled to a relief under law the same cannot be refused on the ground that as the suit is one of pre‑emption the same should be refused on a strict view of law. Thus, this is not a case of indulgence in favour of the plaintiff in a pre -emption suit rather it is a question of exercising the discretion in a civil suit in consonance of the norms of law.”

 

Hashmat Ali v. Sh. Hafizullah (PLD 1956 B.J. 33). The plaintiff in the suit for pre‑emption set forth only the land as the property to be pre‑empted, whereas the sale in question also included a `baghicha’ and houses. The defendant raised the plea of partial pre‑emption. Thereupon the plaintiff sought to amend the plaint on the ground of inadvertence in the omission of the `baghicha’ and the houses. It was submitted that the plaint was drafted by a petition‑writer and the omission was accidental because the plaintiff did not want to give up his right of pre‑emption with regard to any part of the property sold. The application was accepted. A revision petition was filed in the High Court of West Pakistan which was accepted by a learned Judge and the permission for amendment was vacated. In coming to the aforesaid conclusion two grounds were recorded by the learned Judge. Firstly the question of inadvertence was a question of fact but the plaintiff had failed to establish inadvertence as he had failed to produce the petition‑writer responsible for drafting the plaint. The other reason which found favour with the learned Judge was that the trial Court acted with material irregularity in accepting the word of some one other than the original scribe with regard to the matter that required determination. The judgment of the Division Bench of the Punjab Chief Court in Jalal Din v. Qasim Din (62 P.R. 1914) was cited before the learned Judge but he expressed the view that it was not a judgment of the West Pakistan High Court but of the Punjab Chief Court and, therefore, it was not binding on him. About the legal proposition involved in the case it was observed as follows:

 

“I am in respectful agreement with the proposition that if a plaintiff wanted to do no more than make a correction of an inadvertent misdescription, it may be allowed to be done at any time, but if the learned Judges who decided that case meant to lay down that additions of the type they were considering must in all cases amount to correction of a misdescription, I would, with great respect, differ from that view.”

 

This judgment contains views of Single Judge which are contrary to the views expressed by a Division Bench of the Punjab Chief Court. This judgment has been superseded by the authoritative judgments of the Supreme Court of Pakistan which I have mentioned in earlier part of this judgment. It may be noted that even in this judgment correction of an inadvertent misdescription was held to be unexceptionable.

 

Another aspect of the matter which needs to be attended to is the question of partial pre‑emption if Shamilat does not find mention in the plaint. In such a situation this Court in Muhammad Latif v. Lai Khan PLD 1979 SC (AJ&K) 123 held that the suit was hit by principle of partial pre‑emption and was to be dismissed. This view also prevailed in a subsequent case reported as Ghulam Nabi v. Mst. Hussain Bibi PLD 1981 SC (AJ&K) 42. I have already mentioned that in a situation in which some property is inadvertently left out or is misdescribed the view of the Supreme Court of Pakistan, as expressed in Wazir Muhammad’s case and Abdul Ariz’s case. is that there is no question that the suit may be hit by the mischief of partial pre‑emption. However, this fact should not detain us because in Muhammad Latif’s case and Ghulain Nabi’s case this Court was not dealing with amendment applications and the dictum in these two cases has no direct bearing on the question of amendment with which I am dealing in the case in hand.

 

As a result .of this discussion I have formed the conclusion that where omission is not intentional addition of Shamilat land can be allowed even after prescribed period of limitation, and that an application for amendment cannot be rejected on the ground of limitation. I would also hold that negligence or carelessness is not a ground on which a prayer for amendment may be refused. However, I may add, as a measure of abundant caution that a Court is not bound to accept a mala fide amendment application as was held in `Jan Muhammad v. Muhammad Munsif (PLD 1986 SC (AJ&K) 98).

 

So far as the facts of the present case are concerned, Mirza Begum instituted her suit to pre‑empt the sale effected through the sale‑deed, dated 27‑12‑1987, copy of which was attached with the plaint. She duly offered to pay the amount Rs.1 lac which was the price paid for the total land sold through the sale‑deed which included the share of Shamilat. It is, therefore, clear from these facts that the share of Shamilat was omitted from the body of the plaint merely due to inadvertence. In these circumstances the learned Sub‑Judge rightly allowed the plaintiff to amend the plaint to rectify the mistake.

 

I would therefore, dismiss the appeal but would leave the parties to bear their respective costs in this Curt’

 

SARDAR SAID MUHA’MMAD KHAN, CJ.‑‑‑1 agree with the conclusion arrived at by Mr. Justice Basharat Ahmad Shaikh. However, I would like to add that if the part of immovable property is omitted in the plaint due to bona fide mistake, the amendment can be allowed to include the same even after the expiry of the period of limitation. But if such an omission is intentional or due to gross negli8ence on the part of the party concerned, amendment should be refused especially if the same is sought after the expiry of period of limitation. What would amount to a gross negligence in a particular case would depend upon the peculiar circumstances of each case and no hard and fast rules can be laid down in that regard. In the instant case the omission to include the share of the land sold out of `Shamilat Deh’ does not appear to be intentional because the pre‑emptor/appellant exercised the right of pre‑emption accepting the total amount of consideration for sale‑deed i.e. one lac rupees. Had the omission to sue for the land sold comprising `Shamilat Deli’ been intentional, the plaintiff‑appellant would not have offered to pay the whole price of the suit land; besides in view of the nature of omission it cannot be said that the same could not have resulted due to oversight or any other bona fide mistake. The plaintiff‑appellant sought the amendment at the early stage of the suit. The different view expressed by this Court in cases, some of which have been referred to in the proposed judgment by Mr. Justice Basharat Ahmad Shaikh cannot be interpreted to mean that this Court laid down an inflexible rule that an amendment seeking inclusion of land left out due to bona fide mistake cannot be alloyed after the expiry of period of limitation under Order VI, rule 17; in proper cases, an amendment can be allowed at any stage of the proceedings with the exception that where a new plaintiff or defendant is added after the institution of the suit, the suit shall, as regards him, .be deemed to have been instituted when he was so made a party.

 

SARDAR MUHAMMAD ASHRAF KHAN, J.‑‑‑I also agree with the order passed by my learned brother Mr. Justice Basharat Ahmad Shaikh whereby he has dismissed the appeal but at the same time subscribe, to the view expressed by the learned Chief Justice in his separate note.

 

ORDER

 

Since we are leaving for 1Vluzaffarabad tomorrow, the judgment shall be announced by the Deputy Registrar, after giving notices to the learned counsel for the parties.

 

A.A./330/S.CA. Appeal dismissed.

 

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