PLJ 2013 Lahore 371
Present: Abdus Sattar Asghar,
J.
GHULAM MUSTAFA
and another--Petitioners
versus
DISTRICT JUDGE,
JHANG and 3 others--Respondents
W.P. No. 6121 of
2013, decided on 14.3.2013.
Civil Procedure
Code, 1908 (V of 1908)--
----O. IV, R.
17--Constitution of Pakistan,
1973, Art. 199--Constitutional Petition--Suit for specific performance of an
agreement to sell--Valuable right--Being legal representative cannot be
permitted to get rid of admission already made in written
statement--Validity--There is no cavil to proposition that provisions of Order
VI, Rule 17 of, CPC are to be construed liberally however petitioners cannot be
allowed to abuse law of procedure by resiling from
admission made by their deceased father in earlier written statement or to put
up a new and inconsistent defence--Admission made by
a party in pleadings cannot be revoked without permissing
of Court--Since on basis of earlier admission a valuable right had been accrued
in favor of respondent there proposed amendment based on ulterior motive cannot
be allowed--Constitutional petition being not maintainable was dismissed in limine. [P.
373] A & B
Mehr Ahmad Bakhsh Bharwana, Advocate for
Petitioners.
Date of hearing:
14.3.2013.
Order
Petitioner has
invoked the constitutional jurisdiction of this Court under Article 199 to
impugn the order dated 16.1.2013 passed by learned District Judge Jhang whereby their revision petition against the order
dated 03.10.2012 passed by learned Civil Judge Jhang
was dismissed.
2. Brief facts leading to this constitutional
petition are that Rustam Respondent No. 3 filed a
suit for specific performance of an agreement to sell dated 13.4.2005 against
the petitioners' father namely Gul Muhammad (since
died), Shahadat Respondent No. 2 and Zarai Taraqiati Bank Ltd.
Respondent No. 4 alleging that he purchased the suit land in consideration of
Rs.30,00,000/- out of which advance money Rs.25,00,000/- was paid to Gul Muhammad and remaining Rs. 5,00,000/- has to be paid at
the time of registration of sale deed. The suit was resisted by Gul Muhammad by filing written statement denying impugned
agreement to sell as well as receipt of earnest money and further contended
that in fact he has sold out the suit land with delivery of possession in favour of Shahadat Respondent No.
2 vide agreement to sell dated 11.12.2006 and that Rustam
Respondent No. 3 has manipulated the impugned agreement to sell dated 13.4.2005
and receipt through cheating and fraud. During the pendency of suit said Gul Muhammad died consequently petitioners were impleaded as his legal representatives. Petitioners while
filing written statement to the amended plaint took a different stance
admitting the claim of Rustam Respondent No.
3/plaintiff and consented to decree his suit against them as per terms of the
impugned agreement to sell.
3. Feeling aggrieved Shahadat
Respondent No. 2 lodged an application before the learned trial Court with the
prayer to ignore unauthorized amendments in the written statement lodged by the
petitioners on 06.10.2009. The learned trial Court vide order dated 02.2.2012
allowed the said application lodged by Shahadat
Respondent No. 2 with the observation that petitioners being legal heirs of Gul Muhammad had no right to change or alter the
contentions raised in the original written statement without permission of the
Court and unauthorized amended written statement was ordered to be ignored.
4. Consequently petitioners lodged another
application before the learned trial Court seeking permission to amend the
written statement contending that written statement lodged by their deceased
father was collusive with Shahadat Respondent No. 2
and that they intend to make amendment in the written statement in this regard.
The application was resisted by Shahadat Respondent
No. 2. The learned trail Court dismissed the petitioners' application vide
order dated 03.10.2012 with the observation that petitioners being legal
representatives of Gul Muhammad deceased cannot be
allowed to get rid of the admission made by their father in his earlier written
statement. Being dissatisfied petitioners assailed the order dated 03.10.2012
passed by learned Civil Judge before the learned District Judge Jhang through revision petition which was also dismissed
through impugned order dated 16.1.2013.
5. It is argued by learned counsel for the
petitioners that the impugned order passed by learned revisional
Court is against law and facts; that provisions of Order VI, Rule 17 of Code of
Civil Procedure 1908 for amendment in the pleadings are to be construed
liberally to meet the ends of justice; that the learned revisional
Court has passed the impugned order on wrong premises of law and facts and
suffering from jurisdictional error is liable to set aside. He added that
petitioners have no other remedy except to invoke the constitutional
jurisdiction of this Court, therefore, this writ
petition is maintainable.
6. Arguments heard. Record perused.
7. The questions involved in this writ petition
are as under:--
(i) As to
whether a party can be allowed to amend the pleadings to get rid of an
admission already made therein;
(ii) As to whether a writ petition against
the order of the revisional Court is competent.
8. It is evident on the record that Gul Muhammad father of the petitioners while filing the
written statement categorically denied the execution of impugned agreement to
sell dated 13.4.2005 and receipt in favour of Rustam Respondent No. 3 and admitted the agreement to sell
dated 11.12.2006 in favour of Shahadat
Respondent No. 2. It is pertinent to mention that Shahadat
Respondent No. 2 has also filed a suit for specific performance which has been
consolidated with the suit lodged by Rustam
Respondent No. 3. A valuable right has been accrued in favour
of Shahdat Respondent No. 2 on the basis of written
statement lodged by the petitioners' father. Petitioners being legal
representatives cannot be permitted to get rid of the admission already made by
their father in his written statement in favour of
Respondent No. 2. There is no cavil to the proposition that provisions of Order
VI, Rule 17 of Code of Civil Procedure 1908 are to be construed liberally
however petitioners cannot be allowed to abuse the law of procedure to favour Rustam Respondent No. 3 by
resiling from the admission made by their deceased father
in earlier written statement or to put up a new and inconsistent defence. Admission made by a party in the pleadings cannot
be revoked without permission of the Court. In the instant case since on the
basis of earlier admission a valuable right has been accrued in favour of Shahadat Respondent No.
2 therefore proposed amendment based on ulterior motive cannot be allowed.
Reliance is made upon Secretary to Government (West Pakistan), Now N.W.F.P.
Department of Agriculture and Forests, Peshawar
and 4 others Vs. Kazi Abdul Kafil
(PLD 1978 SC 242).
9. For all above learned Courts below have
rightly observed that in the absence of bona fides it was not a fit case to
allow the proposed amendment. Concurrent findings of the learned Courts below
are based on cogent reasons and do not call for any interference. I do not see
any jurisdictional error, legal or factual infirmity in the impugned order
passed by learned Revisional Court.
10. As regards question of maintainability of
this constitutional petition guidance is sought from the dictum laid down by
the Hon'ble Apex Court in the case of Muhammad Khan
and 6 others Vs. Ghulam Fatima and 12 others (1991
SCMR 970). In the cited case petitioner's application for amendment was
disallowed by the learned trial Court and their revision petition against the
said order was dismissed by the learned District Judge
which was assailed
in a constitutional petition before this Court. The writ petition was
dismissed by this Court and leave to appeal against the order of this Court was
also declined by the Hon'ble Supreme Court of
Pakistan. In the light of above dictum this constitutional petition against the
impugned revisional order passed by learned District
judge is not maintainable.
11. For the above reasons, this constitutional
petition having no merit and being not maintainable is dismissed in limine.
(R.A.) Petition
dismissed
