ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 815, 772 and 1158 of 2010

Date	Order with signature of Judge

For hearing of applications under order VI rule 17 CPC filed on behalf of the plaintiffs in the titled suits.

Date of hearing: 15.04.2016 and 25.04.2016

Mr. Salahuddin Ahmed for plaintiffs.

Mr. Amel Kasi along with Ms. Nahe Chandio for defendant No.1.

-.-.-

Mohammad Shafi Siddiqui, J.- Through applications under order VI rule 17 CPC plaintiffs in the subject suits are seeking certain amendments in Para 19 of the plaint and intend to insert Para 19-A along with corresponding prayer clause as (vii).

          It is the case of the plaintiffs that the in terms of proposed amended prayer clause (vii) plaintiffs are now proposed to claim damages, which is based on the same cause of action as incorporated in Para 20 of the leading suit No.815 of 2010 which relates to termination of the plaintiffs by KESC. It is claimed by the plaintiffs through this amendment that they seek damages in consequence of alleged unlawful termination.

          Learned counsel for plaintiffs submitted that the Hon’ble Supreme Court has remanded the case for its expeditious disposal in three months however this would not curtail the legal remedies and rights available to plaintiffs under the law.

          In support of his contentions learned counsel for plaintiffs relied upon the cases of:-

1. 1995 SCMR 69

2. 2003 SCMR 318

3. PLD 1985 SC 345

4. 1996 CLC 198

5. 2006 YLR 1425

6. 2008 CLC 946

7. 1992 MLD 1972

8. 1982 CLC 2616

 He then submitted that the amendments sought would not substantially alter the complexion of the suit since the relief is flowing out of the contents of the plaint.

          On the other hand learned counsel for contesting defendant No.1 submitted that the Hon’ble Supreme Court vide order dated 09.11.2015 remanded the case to this Court who is seized of the original suits instituted by the plaintiffs. The word original suits in the order denotes that no amendment could be made in the suit and it is to be ensured that after consolidating the suits and framing of the issues expeditiously, the judgment and decree be passed and amendment, if allowed, would amount to negate the very purpose of its remand.

Counsel further submitted that this would substantially and materially change the complexion of the suits as the relief of reinstatement is different and distinct from the relief of damages though the cause of action for both the reliefs is same. It is further claimed that although there is no limitation prescribed for considering the application under order VI rule 17 CPC but insofar as the prayer clause is concerned since additional relief is being claimed therefore to that extent the limitation would prevail and the plaintiffs are under the obligation to assist as to maintainability of the suits in terms of the Limitation Act.

I have heard the learned counsel for the parties and perused the material available on record.

The subject issue involves two points i.e. whether the proposed amendment would change the nature and character of the suit and whether the proposed claim could attract the provisions of the Limitation Act in terms of the added prayers.

The plaintiffs have filed these suits originally challenging the termination letter which was contested up to Hon’ble Supreme Court. The Hon’ble Supreme Court while disposing of the petition directed this Court to dispose of the matter expeditiously within the time frame given. The word original mentioned in the order of Hon’ble Supreme Court denotes to the original jurisdiction of this Court and it does not mean that the suit is to be disposed of in its original form as the legal remedies which are available to the parties in a pending suit cannot be taken away and has not been taken away by the Hon’ble Supreme Court and in exercise of such right the plaintiffs have filed these applications for the proposed amendment.

The facts narrated in the plaint are relied upon without any alteration insofar as the proposed amendment is concerned. Hence, in order to claim proposed relief the nomenclature/facts/contentions of the plaintiff have not been altered. It may well have added to the prayer clause which prayer clause is different from the one which is already prayed for. It is to be seen whether the relief claimed as of now through the proposed amendment flows from the contents of the plaint or it is based on some additional facts and some other cause of action. After going through the contents of plaint, prayer clause and the proposed amendment, it can be conveniently said that it has not changed the nomenclature and facts of the case. Hence, does not materially alter the complexion of the suit. The plaintiff should not be non-suited for the purpose of amendment/relief on account of it being barred by time since it is flowing from the contents of the plaint.

In the case of Muhammad Mian v. Shamimullah reported in 1995 SCMR 69 it has been observed by the Hon’ble Supreme Court that the application for proposed amendment was contested that it has been filed after long delay. In the referred judgment the suit was filed in the year 1979 but the relief of possession was not claimed and the application for amendment was filed and such relief was sought. It was observed that the amendment claimed by the party will not alter nature of the suit or relief as it is a consequential relief.

In the case of Mst. Arshan Bi v. Maula Bakhsh reported in 2003 SCMR 318, the Hon’ble Supreme Court while dilating upon the issue in hand observed that the party seeking declaration had failed to claim consequential relief and should not have been non-suited on technical grounds.

In the case of Mst. Ghulam Bibi v. Sarsa Khan reported in PLD 1985 SC 345 Hon’ble Supreme Court has observed that the delay alone in applying for amendment or expiry of period of limitation or increase in Court fee would not be a ground to refuse the amendment in plaint.

In the case of Commander (R) M.A. Ansar v. Pakistan Defence Housing Authority reported in 1996 CLC 198 the learned Single Judge of this Court in relation to an application for amendment in the prayer clause observed that the prayer for restoration of possession by deleting prayer of demolition and encroachment; neither the nature of suit was changed nor cause of action would be affected.

Similarly in the case of Liver Brothers Pakistan v. Effef Industries reported in 2006 YLR 1425 the only restriction in the way of allowing such application was that it should not change the nature and complexion of the suit and the delay itself is not a ground to refuse the amendment.

In the case of Ahmed Jamil Ansari v. M/s Al-Hoqani Securities & Investment Corporation reported in 2008 CLC 946 this Court observed that it is the duty of the Court to take into consideration facts and circumstances of the case; even subsequent events which might have come into existence after institution of the plaint.

In the case of Shaheen Hassan v. Grindlays Bank 1992 MLD 1972 this observed that the amendment sought could be consistently maintained on facts and circumstances of the case already stated in the plaint and was thus based on same cause of action which fact by itself would be sufficient to outweigh consideration of limitation. The proposed amendment was thus stated that would not change nature and character of the suit.

In the case of Ali Hussain v. Ali Ahmad Khan Warsi reported in 1982 CLC 2616 learned Division Bench of this Court while considering the identical issue observed that the proposed amendment if does not change the character of a suit should be allowed. In the referred case the suit for declaration of title was filed in the year 1967 whereafter a legal representative of the respondent applied for amendment to include prayer for recovery of possession in 1978. The Division Bench observed that had the plaintiff in the suit chosen such amendment at the time of filing of the suit, the character and pattern of the suit would have remained the same.

While considering the proposed amendments in this suit wherein the plaintiff is seeking damages and compensation in relation to termination letter is in fact based on identical facts and circumstances and even the cause of action would not be altered and hence following the principles laid down by the superior Courts referred above would advance the cause if such amendment is considered to be allowed. Neither the plaintiff has sought any addition of facts or cause of action not it would require. Hence, in view of above principle laid down by Superior Courts the applications are allowed. Since limited time frame has been given by the Hon’ble Supreme Court, I direct the plaintiffs to file amended plaint within three days with advance copies to the counsel for defendants who are at liberty either to file amended written statement within three days or opt to rely on the written statements already file, a statement to this effect be filed within three days.

Dated: 09.05.2016                                                            Judge