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MST. GHULAM BIBI AND OTHERS-APPELLANTS VERSUS SARSA KHAN

AND OTHERS-RESPONDENTS

1985 PLD 345

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Appeal Accepted

Supreme Court of Pakistan

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Muhammad Haleem, Actg. C. J., Muhammad Afzal Zullah, Shafiur Rahman and S. A. Nusrat, JJ

Civil Appeal No. 21 of 1985

cDate of Decision: 4/6/1985

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JUDGMENT
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MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against
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judgment dated 13-6-1984 of Lahore High Court whereby a Regular Second (Civil) Appeal
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arising out of a land (exchange; suit, filed by the present appellants side was dismissed.
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The question for the examination of which leave to appeal was granted i: whether in the
facts and circumstances of the case the appellants' (plaintiffs') side should have been
permitted by the High Court to amend the plain so as to convert a suit for declaration as to
ownership of the suit-land into a suit for specific performance of contract of exchange
involving the suit-land.

The facts strictly relevant for the determination of the aforestated question as noted in the
leave granting order are that by an agreement of exchange, dated 23rd of January, 1969
Muhammad Aslam, the predecessor in-interest of the appellants received 197 Kanals of
agricultural land situate in Cbak No. 160/W. B. Tehsil Mailsi, District Vehari, from Malik
Mian Khan predecessor-in-interest of respondents in lieu of his 6 Bighas of agricultural land
situate in village Padhrar, Tehsil Khushab, District Sargodha. But as the land received in
exchange was more in area, Muhammad Aslam agreed to pay Rs. 48,000 as equalising
amount ; out of which Rs. 40,000 were paid leaving a balance of Rs. 8,000. Possession of the
exchanged lands was received by the parties, but before the mutation could be attested in
respect of the land in suit, Malik Mian Khan died, and accordingly, the mutation was
rejected as his legal representatives did not agree to this exchange. There was litigation on
the revenue side and ultimately a suit was filed by Muhammad Aslam, seeking a declaration
that he is the owner-in-possession of the land and for injunction to restrain the respondents
from interfering with his possession. The frame of the suit was contested as the respondents
pleaded that such a suit for declaration and injunction was not maintainable in its present
form, and, accordingly, Issue No. 2 was framed as to whether the "suit was not maintainable
in the present form ?" The trial Court decided the issue against the respondents and
decreed the suit on his findings on other issues in favour of the appellants. The respondents
went in appeal and succeeded in the appellate Court which held that as the exchange deed

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was not registered, no title was conveyed to the appellants ; and as they had still to pay Rs.
8,000 to Malik Mian Khan, he should have filed a suit for specific performance of the
agreement and not a declaratory suit. And while reversing the findings on Issue No. 2, held
the suit not to be maintainable in the present form. In second appeal an application was

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filed to amend the plaint, but it was rejected on the ground that it was a belated request and
if allowed it would cause injustice and injury to the opposite party particularly in the context
that an objection was taken in the written statement but no steps were taken to rectify the
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error. Further, reasons were also given as under :
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"If the amendment is allowed it will reopen the whole case and will result in amendment of
the written statement, framing of additional issues and leading of evidence by the parties in
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the circumstances of the present case. It will also change the forum of first appeal because
the appellants also want to amend value for purposes of court-fee and jurisdiction. Generally
delay alone in applying for amendment or expiry of period of limitation or increase in court-
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fee and change of jurisdiction is not a ground for refusing amendment in the plaint but in
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the circumstances of the present case there is no merit to allow the amendment. The
appellants were negligent in seeking amendment and the application is not made bona fide."
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Learned counsel reiterated arguments advanced at the leave granting stage, namely, that
the amendment which was being sought would not have changed the nature of the suit. It
was only the form of the relief on proof of the facts alleged in the plaint, that would have
been changed ; as, instead of a declaration the decree sought would have been for specific
performance. It was more-so when willingness was shown in the application for amendment
to pay the balance of the equalising amount namely, Rs. 8,000. As for the delay it was
contended that the Court has the power to allow the amendment at any stage not only
during the trial but also in the appeal. Further, it was contended, that the issue framed by
the trial Court on the question of the form of the suit was decided in favour of the appellants
and indeed the suit was also decreed in their favour and the respondents had filed the first
appeal. Therefore, these factors should also have been taken into account on the question of
the so-called belated applications.
Learned counsel for the respondents while agreeing that the Courts have ample power to
permit amendment in pleadings, the same would not be allowed if the application is made at
a belated stage. He, however, argued that if by amendment the suit becomes time-barred,
the Court would not allow the same. In this regard he relied on Ram Asra and another v.
Allah Jawaya and another (AIR1931Lah.595), Bhagwanji Morarji Gocul Das v. Alembic
Chemical Works Co. Ltd. and others (AIR1948PC100), as also some observations in Ardeshir
H. Mama v. Flora Sassoon (A I R 1928 P C 208).

Learned counsel for the appellants in reply to arguments of respondent-side, relied upon
some judgments of this Court to show that the question of limitation will not deter the Court

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from allowing amendment if otherwise it is in accord with the provisions contained in rule
17, Order VI, C. P. C. and the justice of the case. They are : Karamat Ali and another v.
Muhammad Yousuf Haji and others (P L D 1963 S C 191), Ahmad Din v. Muhammad Shaft
and others (P L D 1971 S C 762), Syed Akhlaque Hussain and another v. Water and Power
Development Authority, Lahore (1977 S C M R 284).

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After bearing both the learned counsel for some time we agree with the observation made
by the learned Judge in the High Court that "generally delay alone in applying for
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amendment or expiry of period of limitation or increase in court-fee and change of
jurisdiction is not a ground for refusing amendment in the plaint", the judgments cited byl
the learned counsel for the appellants depending upon the circumstances of each of them
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support the said view. However, with respect, we have not been able to agree with the
learned Judge that notwithstanding the legal position, "in the circumstances of the present
case there is no merit in the prayer to allow the amendment for the reason that the
appellants were negligent or that the application for amendment was not made bona fide".
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No doubt an objection was raised from the respondent-side that the suit was not
maintainable in the present form and an issue was framed in that behalf. But it was ignored
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that the said issue was decided by the' learned trial Court in favour of the appellants on the
finding that the so-called agreement to exchange was, in so far as its contents disclose; in
reality a contract of exchange. Therefore, the plaintiffs (the present appellants) could not be
held to have acted in a mala fide manner in not seeking the amendment before the trial
Court. In the same context the learned counsel for the appellants is right in pointing out
that it was the respondent-side which filed the appeal before the District Court. If the
appellants would have filed before the trial Court on this issue and they had filed the appeal
before the District Court a question could have arisen as toy why they did not at least ask
for the amendment of the plaint as an alternative course of action. But here it was a
different situation. Be that as it may, the learned Judge himself observed and rightly, so that
the delay alone in applying for the amendment cannot be a determining factor for deciding
an application under Order VI, rule 17, C. P. C. The use of the expression "at any stage of
the proceeding" in rule 17 is not without significance. The word "proceedings" has been
interpreted by this Court in a liberal manner so as to give a proper scope to the rule in
accord with its purpose, as including the appellate stage and that too up to the Supreme
Court.

The foregoing interpretation is also in accord with the mandatory language used in rule 17
to the effect that "all such amendments shall beg made as may be necessary for the purpose
of determining the real questions in controversy . . . . ." Therefore, once the Court decides
that the amendment is necessary for the said purpose of determining the real question, the
Court is required by law to not only to allow an application made by a party in that behalf
but is also bound to direct the amendment for the said purpose. Thus, the rule can be
divided into two parts. In the cases falling under the first part, the Court has the discretion

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to allow or not to allow the amendment, but under the second part once the Court comes to
a finding that the amendment is necessary for the purpose of determining the real question,
it becomes the duty of the Court to permit the amendment.

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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
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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
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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
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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
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performance etc. instead of declaration etc. and secondly, there was to be a similar change
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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
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visualises is not only natural but would ordinarily be occasioned in almost every case. That
is why the law visualises the award of adequate com-1 pensation : in that, the amendment
has to be allowed "in such manner and on such terms as may be just".

In the light of the foregoing discussion if the cause of action does not change the main
substance of the suit and nature of the suit would not change and if that does not change
the question of limitation would then remain only of form and not of substance. That is why
this Court has so far followed the liberal rule in interpreting Order VI, rule 27 so as, to
permit amendment if otherwise necessary notwithstanding the possibility that on account of
some formal change, the question of limitation might have acquired pronounced
importance, had it not been a case of amendment under Order VI, rule 17. Other principles
governing the question of amendment in pleadings have adequately been determined and
examined in the precedent law and no more discussion is necessary in so far as the question
of law and principle is concerned.

Coming to the merits of the present case as stated in the application, for amendment, the
facts on which the plaintiffs/appellants relied when filing the plaint would not undergo any
substantial change except for technical verbal variations and changes. The original
document relied upon by the plaintiffs and denied by the respondents whether or not it
constituted only an agreement to affect an exchange; the fact that it was not registered; the
assertions and the avarments in the pleadings regarding possession; as also, the averments
regarding payment of equalising amount, would remain the same. Other technical change
which would take place are with regard to the value of the subject-matter and questions

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related thereto; but, as has rightly been pointed by the learned Judge in the High Court this
by itself would not be a ground for refusing amendment if otherwise it has to be permitted
under rule 17.

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In the light of the above discussion the impugned judgment is liable to be set aside and this
appeal merits to be allowed.
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Before closing this judgment, short comment is necessary on the cases cited at the bar and
others placed before the Court by the staff.
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The Lahore case of Ram Asra cited from the respondent-side, no doubt is similar to the
present case in so far as the broad features involved in both the cases are concerned; but,
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with respect, it needs to be pointed out that the Privy Council judgment in Ma Shwe Mya v.
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Maung Mo Hnaung (AIR1922PC249), purported to have been relied upon was in fact not
followed by the learned Judges. If the following observations made in the Privy Council case
would have been followed in their true sense and spirit,
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the High Court would have been obliged to allow the amendment in the said case

"The first question that arises is whether or no leave to amend was

properly given in accordance with the rules by which that leave

must necessarily be regulated. All rules of Court are nothing but

provisions intended to secure the proper administration of justice, and

it is, therefore, essential that they should be made to serve and be

subordinate to that purpose, so that full powers of amendment must be

enjoyed and should always be liberally exercised, but nonetheless no

power has yet been given to enable one distinct cause of action to be

substituted for another, nor to change, by means of amendment, the

subject-matter of the suit." *(Underlining is ours).

The error, it seems, again with respect it is pointed out, was committed by the learned

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Judges of the High Court in giving too narrow construction and the scope to the
expressions: "Character of the suit" and "cause of action" when applying them to the facts of
the case before them. We, in view of the latest development of law on the question of the
purpose of the rules of procedure, are unable to approve the course adopted in the Lahore
case.

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The Privy Council judgment in the case of Bhagwartji Morarji Gocul Das cited by the learned
counsel for the respondents is also of no assistance to them because the amendment of the
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plaint as held therein would have introduced a new claim, and that being so, its effect on
question of limitation could not be ignored.
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The next Privy Council case cited by the learned counsel for the respondents Ardeshir H.
Mama rather supports the plea that the Court should have the power of granting proper
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amendments. It is not only salutary but indeed necessary. However, it has to be applied
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carefully to the circumstances of each individual case. We, however, with respect, to the
Judicial Committee, in view of the jurisprudential changes influenced by Islamic ethos in
Pakistan are unable to agree that if a defendant is prevented from "starving a plaintiff out of
his right" then the amendment should not be allowed. It has often been ruled in recent years
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by the superior Courts of Pakistan that the rules of procedure are meant to advance justice
and to preserve rights of litigants and they are not meant to entrap them into blind corner
so as to frustrate the purpose of law and justice.

On the general question of technicalities of the civil procedure when they are pressed into
service so as to thwart rights and remedies, it would be better here to reproduce the
thoughts of an eminent Judge of this Court. He observed

"I must confess that having dealt with technicalities for more than forty years, out of which
thirty years are at the bar, I do not feel much impressed with them. I think the proper place
of procedure in any system of administration of justice is to help and not to thwart the grant
to the people of their rights. All technicalities have to be avoided artless it be essential to
comply with them on grounds of public policy. The English system of administration of
justice on which our own is based may be to a certain extent technical but we are not to
take from that system its defects. Any system which by giving effect to the form and not to
the substance defeats substantive rights is defective to that extent. The ideal

*(Here In italics)

must always be a system that gives to every person what is his." (See Imtiaz Ahmad v.

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Ghulam Ali P L D 1963 S C 382).

On question of amendment of the pleadings this Court, as would be presently shown, has in

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recent years adopted a liberal view, as compared to the strict view of the master in some old
cases. Keramat Ali and another v. Muhammad Yunus Haji and others (PLD1963SC191) in
reality is the basic judgment on this issue. On the wider question relating to the purpose of
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the rules regarding pleadings a very important observation has been made in another recent
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judgment of this Court-Dino Manekji Chinoy and others v. Muhammad Matin (PLDI984SC1)
to the effect that a strict view "on the technical plane, of pleadings without regard to the
substance of the matter which results in defeating the ends of justice and leads to
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smothering genuine litigation, is not to be taken". It needs to be mentioned that the expiry
of limitation by itself when considering the question of amendment was not treated as a bar
if otherwise it is found to be necessary for the purpose mentioned in Order VI, rule 17 by
the Privy Council in another case, namely, Charan Das and others v. Amir Khan and others
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(A I R_ 1921 P C 50). Support was sought for this view from yet another Privy Council case,
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namely, Muhammad Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer ((1867) I 1 M I A 467).
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In addition to the cases of Keramat Ali ; Ahmad Din and Syed Akhlague Hussain cited by the
learned counsel for the respondents, the Research' Assistant of this Court has pointed out
the following additional recent' case-law from this Court in so far as the liberal view for
allowing they amendmeot of the plaint is concerned. And this would equall]r apply to the
amendment of other pleadings. The cases are :

Ghulam Nabi v. Sardar Nazir Ahmad 1985 S C M R 824 ;

Dino Manekji Chinoy v. Muhammad Matin P L D 1984 S C 1 ;

Ali Hussain v. Late Ali Ahmad Khan Warsi 1983 S C M R 1178 ;

Manzoor Hussain v. Sajawal 1983 S C M R 465 ;

Muhammad Ismail v. Muhammad Sarwar 1980 S C M R 254 ;

Secretary to Government (West Pakistan) v. Kazi Abdul Kafil P L D 1978 SC264;

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Syed Akhlaque Hussain v. WAPDA, Lahore 1977 S C M R 284 ;

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Zubeda Begum v. Wali Muhammad Khan 1974 S C M R 181 ;
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National Shipping Corporation v. A. R. Muhammad Siddik 1974 S C M R 131 ;
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Bashir Ahmad Khan v. Quiser Ali Khan P L D 1973 S C 507 ;

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Ahmad Din v. Muhammad Shafi P L D 1971 S C 762 ;

Sultan Ahmad and another v. Sahu and others 1969 S C M R 277 ;

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The above-noticed cases are, amongst many others, indicative of the rule followed by the
Court on the subject under discussion. There are some cases in the circumstances whereof
amendments were disallowed by the lower Courts and the judgments were upheld by this
Court some times by refusing to grant leave to appeal on account of another rule that this
Court rarely interferes with exercise of discretion. In most of the other cases the Court
disallowed the amendment because it would have`, changed the cause of action or subject-
matter in the lis.

In few cases, the observation regarding power of this Court to do, complete justice, no
doubt, has been made but that alone is not the rationale behind the liberal rule of
construction in so far as Order VI,I rule 17 is concerned. It cannot be said that if the
Supreme Court inl exercise of its power to do complete justice considers the amendment' to
the pleadings to be liberally allowed, it would apply different principle of justice for other
Courts when interpreting Order VI, rule 17. In l reality the said rule is by itself couched in
such language as to advance the object of complete justice.

In some cases in addition to what the Judicial Committee thought in the case of Ardeshir H.
Mama to be the right of a defendant "to starve a plaintiff out of his right through the
technicalities of procedure" with which, with respect, we have not been able to agree, it has
also been observed that when allowing amendment in a plaint the defendant's right) should

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also be kept in view. When the relevant law itself takes cognizance of any inconvenience,
embarrassment or frustration to a party on account of its observance the Court would not
through any residuary principle add to or subtract from the manner of making amends
provided' Yri the law itself. In case of amendment to the pleadings the law-makers when
enacting rule 17 of Order VI were conscious that the party opposing the amendment might

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be deprived of some right, convenience or advantage or may otherwise be put in some
embarrassment by permitting the amendment ; which as has often been held might even
override the consideration of limitation, provided the cause of action is not changed so as to
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make it a totally new suit. It was this consciousness regarding some amount of loss to the
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other party that the law-makers visualised a compensation, namely, that the amendment
keeping in view the circumstances of the case and the stage of litigation would be on "such
terms as may be just".
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The Courts, as discussed above, exercising liberally the power to amend the pleadings,
should also when discovering that the other party would suffer some loss, compensate it
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equally liberally. The working out of the compensation in our system of procedure is not
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very difficult. Fees and other expenses incurred by such party should ordinarily be made the
burden of the party obtaining the leave to amend its pleadings.
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A short comment on observations made in some of the aforenoticed judgments regarding

the effect of provisions of Order II, rule 2, C. P. C. in so far as the refusal to allow proper
amendments is concerned, will not be out of place. Often an application for amendment is
opposed on the ground that it would introduce a new element in the case as distinguished
from a new cause of action or a new case altogether. Of course, in so far as the new cause of
action and a new suit is concerned that cannot be permitted to be introduced in the garb of
amendment ; but regarding the introduction of a new or different element which by itself
does not constitute a different cause of action or a new suit it would be in accord with the
provisions contained in Order 11, rule 2, C. P. C. It provides' that "every suit shall include
the whole of the claim which the plaintiff is entitled to make in respect of the cause of
action" ; further that where the plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished. Similarly, it provides that a person entitled to more than one
relief in respect of the same cause of action may sue for all or any of such reliefs ; but if he
omits, except, with the leave of the Court, to sue for all such reliefs, he shall not afterwards
sue for any relief so omitted. If a genuine amendment which is permissible and should
otherwise be liberally allowed in view of the principles highlighted in the foregoing
discussion with reference to the case-law, is denied the provisions contained in Order II,
rule 2 would create enormous difficulties for the applicant. It was in this context that this
Court, made the following observation in the case of National Shipping Corporation v.
Messrs A. R. Muhammad Siddik and another (1974SCMR131).

"The application for amendment was opposed by the petitioner on the ground that it

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introduced an entirely new cause of action which virtually altered the nature of the suit. The
learned Single Judge overruled the objection for, in his view, the proposed amendment
neither altered the nature of the suit, nor raised any new cause of action.

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Learned counsel for the petitioner repeated the argument which was repelled by the
learned Single Judge by the impugned order. It is difficult to see how the nature of the suit
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will be altered by the new plea. It cannot 6e gainsaid that unless respondent No. 1 is
allowed to raise this plea, his subsequent suit on the new plea would be barred under Order
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II, rule 2, C. P. C."
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It was on the foregoing consideration, (bar contained in Order II, rule 2) that the leave to
appeal was refused with a further very weighty remark which reads as follows :
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"The Courts have always inclined to allow leave liberally to enable the parties to bring all
points relating to a dispute between the parties before the Court so as to avoid multiplicity
of proceedings."
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In the light of the foregoing discussion, this appeal is allowed, the impugned judgment is set
aside. The application made by the appellants in the High Court for amendment of their
plaint is allowed subject to the payment of Rs. 2,000 as cost of the amendment. The case is
remanded to the trial Court with the direction that after the amendment of the plaint the
defendants shall also, if they so request, be allowed a proper opportunity to amend their
written statement. In view of the controversy regarding effect of the provision contained in
Order VI, rule 17 on question of limitation, we would not make any order as to costs of this
appeal.