2024 CLS 27
Other citations: 2021 LHC 7914 = 2024 CLC 205
[Lahore High Court]
Before Sultan Tanvir Ahmad, J
Malik Muhammad Altaf—Appellant
versus
Muhammad Ashraf (Deceased) through Legal Heirs and another—Respondents
R.S.A No. 226 of 2016, heard on 10th November, 2021.
HEADNOTES
(a) Civil Procedure Code (V of 1908) —
— O. VI, R. 17 & O. VIII, R. 9 — Amendment of pleadings — Subsequent pleadings — Scope — Trial Court, at any stage of the proceedings, can permit the plaintiff or defendant to alter or amend the pleadings on the terms which are just and when such amendment is necessary to determine the question in controversy — The parties at their own are not permitted to alter or amend the pleadings and unless written statement contains set-off, the pleadings are considered as final — Furthermore, through amendment in written statement one cannot resile from the admission if made earlier in his written statement. [Para. No. 14]
Mst. Hajani Hajrabai v. Afzal Ali and 2 others (1992 MLD 453) relied.
Abdul Rasheed through L.Rs. and 7 others v. Muhammad Akhtar and another (2018 YLR 2482) referred.
(b) Civil Procedure Code (V of 1908) —
— O. VI, R. 17 & O. VIII, R. 9 — Amendment of pleadings — Subsequent pleadings — Scope — Defendant does not acquire unfettered rights to change the written statement in toto or substitute it by a completely new written statement and the Court is entitled to apply the principles relating to amendment of pleading while examining the amendment in written statement as well as without permission of the Court no party has any inherent right to amend the pleading at its own discretion. [Para. No. 15]
Haji Suleman Ali Muhammad (Represented by His Legal Heirs) v. Ahmed Ali and another (PLD 1982 Karachi 11) relied.
Abdul Rasheed through L.Rs. and 7 others v. Muhammad Akhtar and another (2018 YLR 2482) referred.
Manzoor Hussain Bhutta, Advocate for appellant.
Malik Muhammad Akbar Bhutta, Advocate for respondents.
Date of hearing: 10th November, 2021.
JUDGMENT
Sultan Tanvir Ahmad, J:—Present Regular Second Appeal has been filed against Judgment and Decree dated 21.09.2016 passed by learned Additional District Judge, Multan, in Civil Appeal No.23/13, whereby the Judgment and Decree dated 01.11.2014 passed by learned trial Court has been set aside and the Civil Appeal of the Respondents is allowed in the following terms:-
“This Court has reached to the conclusion that the trial Court has not advanced good reasoning in support of the Judgment and decree impugned, therefore, the Appeal in hand is hereby allowed in the terms that respondent has deposited the remaining consideration of Rs. 4,80,000/- before the Government Treasury and he is entitled to return the same. The appellant No.1 is also directed to return the earnest money valuing Rs.1,50,000/- taken by him from the respondent. There is no order as to special costs”.
2. Facts, necessary for the disposal of the present case, are that on 31.10.2006 Appellant filed a suit for specific performance on the basis of agreement dated 23.06.2006. Per contents of the amended plaint, agreement to sell dated 23.06.2006 was executed between the parties whereby land measuring 17-Marlas situated in Mouza Lataf Abad Tehsil Sadar Multan” (the ‘Suit Property’) was agreed to be sold against the consideration of Rs.630,000/- and an amount of Rs.150,000/- was paid as earnest money, whereas it was settled between the parties that remaining amount of Rs.480,000/- would be paid at the time of registration sale deed, in favour of the Appellant. The said suit was contested by the Respondents and out of the divergent pleadings, following issues were framed:-
1. Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
2. Whether the plaintiff’s suit is not maintainable in its present form? OPD
3. Whether the detail of the property has incorrectly been mentioned and due to this reason, the suit is liable to be dismissed? OPD
4. Whether the suit is time barred? OPD
5. Whether the defendant is owner in possession of only 17-marlas of land and he is ready to fulfill his part of contract in this respect? OPD
6. Whether the suit of the plaintiff is false and frivolous and defendants are entitled to get special costs u/s 35-A of CPC? OPD
7. Whether the plaintiff remained willing to perform as part of contract? OPP
8. Whether the plaintiff is agreed to sell 21 Marlas of land against consideration already stipulated between the parties? OPP
9. Whether on 23.06.2006 along with main agreement to sell, an agreement was executed between the parties after disclosure of possession of the defendant of 21-Marlas of land? OPP
10. Whether the plaintiff is entitled to decree for specific performance of agreement along with perpetual injunction? OPP
10.A. Whether the plaintiff is entitled to get the decree for specific performance of impugned agreement to sell dated 23.06.2006 as prayed for? OPP
10-B.Whether the parties were also agreed for giving possession of 4 marlas land in addition to 17-marlas land? OPP
10-C.Whether both the parties executed the agreement to sell dated 23.06.2006 only to the extent of land measuring 17-marlas and there was no issue of 4-marlas land in addition to the said 17-marlas land? OPD
11. Relief.
3. Appellant appeared as PW-1 and produced Nazir Ahmad as well as Muhammad Nawaz as PW-2 to PW-3, respectively. To further support the claim, Exh.P1 to Exh.P2 and mark-A1 were brought on record. On the other hand, Respondent No.1 appeared in the witness-box as DW-1. Exh.D1, Exh.D2 and Mark-D1 were brought on record.
4. On 01.11.2014 learned trial Court gave issue-wise findings and suit of the Appellant was decreed and following relief was granted:-
“The suit is hereby decreed to the extent of 17-marlas and to the extent of remaining claim of 4-marlas property suit is hereby dismissed. Plaintiff is also directed to deposit the remaining sale price in the court within 30 days, failing which the suit shall be deemed dismissed”.
5. The Judgment and Decree was challenged by way of Civil Appeal No. 23/13, which was accepted vide Judgment and Decree dated 21.09.2016 by the learned first Appellate Court. Aggrieved from the same, this Regular Second Appeal has been filed.
6. Mr. Manzoor Hussain Bhutta, learned advocate appearing for the Appellant has contended that in view of the law laid down by the Honourable Supreme Court of Pakistan in case titled “Muhammad Rafique and Others versus Manzoor Ahmad and Others”(2020 SCMR 496), the learned first Appellate Court was bound to decree the suit, in terms of the admission of the Respondents in the written statement; the execution of the agreement to sell as well as the consideration were admitted by the parties, therefore, the dismissal of the suit by the first Appellate Court is not tenable. He has further contended that the learned first Appellate Court has ignored the material parts of the pleadings and the evidence led by the Appellant. Per contentions of the learned counsel for the Appellant, Respondent was never willing and ready to perform the contract and various delaying tactics were adopted by him including the transfer of the Suit Property to his wife/Respondent No.2, very tactfully during the time period when the suit remained dismissed for non-prosecution for a while. Learned counsel for the Appellant has vigorously argued that while filing the amended written statement, Respondent has wrongfully resiled from the admission made in the original written statement.
7. Malik Muhammad Akbar Bhutta, learned advocate appearing for the Respondents has vehemently opposed the Appeal as well as the aforesaid arguments. It is contended that Order XII Rule 6 of the Code of Civil Procedure, 1908 (the ‘Code’), requires filing of application and in the absence of such application decree cannot be passed solely on the admission and the case became open for both parties, to prove their respective pleadings by way of evidence. Learned counsel for the Respondent has also relied upon section 24(b) of the Specific Relief Act, 1877 while arguing that the Appellant never had the capacity to perform the agreement.
8. I have heard the arguments and perused the record with the able assistance of the learned counsel of the parties.
9. On 30.10.2006, Appellant filed suit for specific performance and as response to the same Respondent filed written statement on 10.01.2007 (the ‘first written statement’). The first written statement contained the following admissions in the preliminary objections as well as in the reply to the paragraphs of the plaint:-
6- یہ کہ مد عاعلیہ نے بروئے اقرار نامہ محررہ مورخہ 23.06.2006 کے مطابق مدعی سے 17 مرلے قطعہ اراضی از جائیداد ملکیہ مدعا علیہ دینے کا معاہدہ کیا تھا اور مدعا علیہ 17 مرلے ہی پیمائش کر کے قبضہ حوالے مدعی کرنے کا پابند ہے۔
7 – یہ کہ مدعا علیہ حسب اقرار نامہ مورخہ 23.06.2006 معاہدہ بیع بعد از حصول زر شمن بقا یا محرره بر اقرار نامہ متدعو یہ لے کر رجسٹری بحق مدعی کرا دینے کو پہلے بھی تیار تھا اب بھی تیار ہے اس لیے دعویٰ ہذا کسی صورت میں بھی سچ پر مبنی نہ ہے۔ اور مدعا علیہ بصورت اخراج دعویٰ حرجانہ خاص لینے کا مستحق ہے۔
10. On 26.03.2014, the learned trial Court directed the Appellant to rectify the measurement/description of disputed land and to file amended plaint as follows:-
“Perusal of record shows that the impugned agreement to sell has been placed on record as Exh.P-1. Eeh.P-1 clearly shows that agreement was reached between the parties with respect of land measuring 17-marlas, therefore, the plaintiff cannot claim the possession of land measuring 21-marlas. The version of the defendant for rectification of plaint is justified. Resultantly, application is accepted. Plaintiff is directed to rectify the measurement/description of disputed land according to the agreement to sell Exh.P-1. Plaintiff is directed to file amended plaint on 02.04.2014”.
11. The aforesaid direction to file amended plaint was passed on the application filed by Respondent No.1, himself. After direction of the learned trial Court, Appellant amended the heading, paragraph No.1 and 2 of the plaint to the effect that the claimed property was reduced from 21-marlas to 17-marlas. While filing the amended written statement dated 30.04.2014 (the ‘amended written statement’), the Respondents took a U-turn and resiled from the admission reproduced above. Preliminary objection No.3 was added in the amended written statement taking somersault and in deviation of earlier stance, where he conceded that he is willing to perform agreement and pass on 17-Marlas, another stance has been adopted that he was ready to transfer 17-Marlas earlier but now he does not want to perform the agreement. The reply to paragraph No. 3 was also altered to the effect that since last date of performance of agreement was 30.10.2006 which has elapsed, therefore, he is not willing to perform the agreement and the Suit Property has already been transferred by Respondent No.1 to his wife/Respondent No.2.
12. Purported resile by Respondent No.1 from his admission through the amended written statement or the change as to the stance in those paragraphs which were amended by Appellant are without specific leave or permission from the learned trial Court, therefore, these are required to be seen in the light of the relevant provisions of law.
13. Order VIII Rule 9 of the Code, restricts filing of further pleading, subsequent to written statement without leave of the Court, unless the written statement contains a set-off. Order VI Rule 17 of the Code empowers the learned Court to permit amendment on the terms that are just. Order VIII Rule 9 of the Code is as follows:-
“9. Subsequent pleadings. – No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same”.
Order VI Rule 17 of the Code is as under:-
“17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be between the parties”.
(Emphasis supplied)
14. Combined reading of above reproduced provisions reflects that the learned Courts, at any stage of the proceedings, can permit the plaintiff or defendant to alter or amend the pleadings on the terms which are just and when such amendment is necessary to determine the question in controversy. The parties at their own are not permitted to alter or amend the pleadings and unless written statement contains set-off, the pleadings are considered as final. Furthermore, through amendment in written statement one cannot resile from the admission if made earlier in his written statement. In case titled “Mst. Hajani Hajrabai versus Afzal Ali and 2 Others”(1992 MLD 453) in the aforementioned regard following has been observed by the Honourable Sindh High Court:-
“The defendants filed their amended written statement which did not contain the admissions made by them in the original written statement. The plaintiff, therefore, filed an application under section 151, C.P.C. praying that the defendants should be restricted to give reply only in respect of such paragraphs of the plaint which were amended and the varied written statement in conflict with the earlier written statement, filed by them should not be accepted on record.
A learned Judge of this Court Mr. Justice Saleem Akhtar, J. (as he then was) after referring to the case-law on the subject observed as under:
“…..The Court has vast discretionary powers to grant amendment and should be liberally exercised to promote the ends of justice and determine the real controversy between the parties. While filing amended written statement besides replying to the amendment part of the plaint, the defendant can also raise please which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement. Admission made by a party in the pleading cannot be revoked without the leave of the Court”.
The rule laid down in the above case is fully applicable to the facts and circumstances of this case and I respectfully follow the said rule:
“Consequently it is held that the said defendants Nos. 3(i) and 3(ii) cannot be permitted to resile from the admissions made by the deceased defendant No.3. All such averments made in the written statement, dated 16th August, 1989, which are in any manner in conflict or inconsistent with the written statement, dated 5th March, 1979, shall be ignored and deemed non-existent for all purposes”.
(Emphasis supplied)
15. In case titled “Haji Suleman Ali Muhammad (Represented by His Legal Heirs) Versus Ahmed Ali and Another”(PLD 1982 Karachi 11), the Honourable Sindh High Court observed that defendant does not acquire unfettered rights to change the written statement in toto or substitute it by a completely new written statement and the Court is entitled to apply the principles relating to amendment of pleading while examining the amendment in written statement as well as without permission of the Court no party has any inherent right to amend the pleading at its own discretion. Following part of the case titled Haji Suleman Ali Muhammad (Supra) is highly relevant:-
“7. The pleading can be amended only with the leave of the Court. The privy Council in Luigi Ambrosini Limited v. Bakare 7’orka AIR 1929PC306, held that if a party is allowed to amend its pleading the opposite-party should be given an opportunity of dealing with the matters involved on the new basis which the amendment established. The Court while granting amendment in plaint determines whether and if so, to what extent further proceedings are called for. In cases where amendment is formal in character no further proceedings may be necessary. Order VIII, rule 9 of the Code provides that no pleading subsequent to the written statement other than by way of defence to a set-off shall be presented except by leave of the Court, on such terms as the Court may think fit. The Court is further empowered to any time to require a written statement or additional written statement from any of the parties. Hence the amended written statement or additional written statement can be filed only with the leave of the Court and no party has an inherent right to amend it at its own discretion”.
(Emphasis supplied)
Further reliance in this regard, can be placed on case titled “Abdul Rasheed through L.Rs. and 7 Others versus Muhammad Akhtar and another”(2018 YLR 2482).
16. In the present case, Respondent No.1 has not just resiled from his original stance but at the same time he has failed to seek any permission or leave from the learned trial Court, while making alterations in the amended written statement, which is not permissible by law.
17. Now coming to the allegations raised by the parties on each other regarding the willingness, readiness and capacity to perform the agreement. The Appellant in his pleadings and evidence asserted that he remained ready to pay the remaining consideration whereas the Respondent No.1 has refused to accept the same. Against the said stance, defendant has also taken a specific plea that the Appellant does not have the capacity or willingness to pay the remaining consideration but his own conduct during trial suggests other way of around. Firstly, he took the stance that he is willing to perform agreement dated 23.06.2006 even after filing the suit, later he resiled from the said stance and secondly, Respondent No. 1 very cleverly transferred the Suit Property to his wife/Respondent No.2, when the suit remained dismissed for non-prosecution for a while. This conduct itself is sufficient to suggest that Respondent No1 was avoiding to perform his obligations as per the agreement.
18. The learned trial Court also reached to the logical finding that the Appellant has supported the version in the plaint, regarding his willingness and readiness to perform this argument, by documentary evidence including Exh.P2 and presence in the office of Sub-Registrar. This is further supported from the fact that Appellant when directed, by learned trial Court, to deposit remaining consideration, he wasted no time to deposit said amount. This finding of the learned trial Court has been brushed aside on the reasoning which is not appealing to mind.
19. The earnest money was paid through banking instrument which even otherwise, is not denied. Appellant when appeared as PW-1 clearly deposed that he through legal notice as well as the concerned property dealer namely Nazir Ahmad reminded Respondent No.1 for effecting registration within stipulated time as follows:-
مورخہ 20.10.2006 کو میں نے بذریعہ لیگل نوٹس مد عاعلیہ کو رجسٹری کرانے کی بابت یاد دہانی کرائی۔ اور مورخہ 24.10.2006 کو بذریعہ پراپرٹی ڈیلر نذیر احمد بھی مدعا علیہ کو رجسٹری کرانے کی بابت یاد دہانی کرائی گئی۔ مورخہ 30.10.2006 کو میں رجسٹرار آفس مدعا علیہ انتظار کرتا رہا جو تکمیل معاہدہ کے لیے نہ آیا۔
20. The aforementioned property dealer namely Nazir Ahmad, when appeared as PW-2, has fully supported the stance taken by the Appellant. PW-3 also supported the version of PW-1. The dispute of difference of the measurement in the property also became immaterial when the learned trial Court allowed the amendment to reduce measuring from 21-Marlas to 17-Marlas that too on the application of the Respondent and this order of amendment was never challenged and it attained finality.
21. Respondent No.1 has appeared as DW-1 during his cross-examination and he admitted that during the pendency of the suit he kept making alternation in the Suit Property. These improvements is the suit property which were followed by transfer of the property to his wife are sufficient to show the ill intention of Respondent No.1, who has also failed to produce any witness or document in support of his specific stance and failed to prove his version taken in the written statement.
22. The Judgment of the learned first Appellate Court is contrary to the law and facts of the case, hence not sustainable. Resultantly, the present appeal is allowed and the Judgment and Decree dated 21.09.2016, passed by learned Additional District Judge, Multan is set-aside. No order as to cost.
Appeal allowed