Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Suit No. 315 of 2005

 

Date

              Order with signature of Judge

 

Mr. Muhammad Ali Jan, advocate for the plaintiff.

Mr. Aziz A. Munshi, advocate for defendant No.1.

 

 

Date of hearing  :  14.09.2015.

 

 

ORDER ON C.M.A. No. 9948 of 2005  

 

 

NADEEM AKHTAR, J. – The plaintiffs have filed this application under Order VI Rule 17 CPC seeking certain amendments in the plaint ; namely, addition of two new paragraphs as 12-A and 12-B after paragraph 12, substitution of proposed paragraph 16 in place of the existing paragraph 16, and insertion of two new prayers as A-1 and A-2.

 

2.         This Suit has been filed by the plaintiffs against the defendants for declaration, cancellation, permanent injunction and damages. Their case, as averred in the plaint, is that they are the daughters of one Mrs. Parveen Shallwani, who was the owner of Bungalow No.F-11-1/B, Block-8, KDA Scheme No.5, Clifton, Karachi (‘the suit property’) ; their above named mother, who was living alone permanently in Canada, was not in good health and was also a psychiatric patient, and as such was not in a position to take proper decisions for herself or in respect of the suit property ; taking undue advantage of their mother’s physical and mental infirmity / illness, defendant No.1 Mrs. Anita Ali Dino persuaded her to dispose of the suit property and assured her payment of handsome amount ; their mother was not in a position to understand the actual value of the suit property ; defendant No.1 obtained signatures of their mother on a paper and also procured a power of attorney in her favour which were subsequently used by her to get the suit property transferred to her name or in the name of her nominee ; an amount of 85,000 Canadian Dollars was mentioned in the said documents which was much below the market price of the suit property ; no amount in respect of the suit property was paid to their mother by defendant No.1 due to which her condition deteriorated further, and finally she died on 04.11.2004 after falling down from 19th floor ; after her death, the plaintiffs requested defendant No.1 to provide copies of the documents executed by their mother, but the same were not provided to them ; the plaintiffs obtained copies of an alleged power of attorney dated 08.09.2003 and bill of sale dated 06.09.2003 purported to have been executed by their mother ; the plaintiffs served legal notice dated 24.12.2004 to defendant No.1 calling upon her to hand over vacant and peaceful possession of the suit property to them ; defendant No.1 is not entitled to claim any right, title or interest in the suit property on the basis of the above documents ; and, the plaintiffs, being the legal heirs of their deceased mother, are the joint owners of the suit property.

 

3.         In the above back ground, the plaintiffs have prayed for a declaration that they are the legal heirs of their deceased mother and are the lawful owners of the suit property, and the documents got executed by defendant No.1 from their mother are illegal and are liable to be cancelled. They have also prayed that defendant No.1 be restrained from claiming any right, title or interest in the suit property, and also from transferring, alienating or creating third party interest therein, and defendant No.2 be restrained from effecting mutation in respect thereof in the name of defendant No.1. They have further prayed that defendant No.1 be directed to hand over possession of the suit property to them and also to pay mesne profits to them at the rate of Rs.1000.00 per day from the date of institution of the Suit till possession of the suit property is handed over to them. A decree in the sum of Rs.15,000,000.00 with mark up thereon at the rate of 18% per annum has also been sought as an alternate relief.

 

4.         Mr. Muhammad Ali Jan, learned counsel for the plaintiffs, contended that written statement was filed by defendant No.1 along with copies of several documents including sale deed dated 24.12.2003 allegedly executed by the plaintiffs’ mother in favour of defendant No.1. He submitted that the plaintiffs were not aware of the alleged sale deed and the same came to their knowledge through the written statement filed by defendant No.1. He invited my attention to paragraphs 6 and 7 of the affidavit filed in support of this application, wherein the facts about the knowledge of the said sale deed have been specifically stated. He further submitted that the present application seeking amendments in the plaint was filed by the plaintiffs as soon as the said sale deed came to their knowledge. It was urged that the amendments sought by the plaintiffs, which will not change the nature, cause of action or complexion of the Suit, are necessary in view of the above development.

 

5.         The application was strongly opposed by Mr. Aziz A. Munshi, learned counsel for defendant No.1. He contended that the allegations made in the application are contrary to and inconsistent with the allegations made in the plaint. He submitted that one set of allegations of fraud cannot be allowed to be substituted by allegations of another kind of fraud. He further submitted that the main issue in the instant Suit is whether the plaintiffs’ deceased mother was competent to sell the suit property or not, and for deciding this issue, the proposed amendments are irrelevant. It was urged by Mr. Munshi that the nature, cause of action and complexion of the Suit will be changed altogether if the proposed amendments are allowed. He prayed for dismissal of the application.

 

6.         I have heard the learned counsel for the parties at length and have also examined the material available on record with their able assistance. Perusal of the plaint and the application in hand show that there is no contradiction or inconsistency in the allegations made therein. The plaintiffs have all along disputed the documents executed by their late mother in favour of defendant No.1 as well as the right, title or interest of defendant No.1 in the suit property on the basis of such documents. They had clearly stated in the plaint that except for the two documents mentioned in the plaint, no other document was in their knowledge or possession. It is a matter of record that the purported sale deed in favour of defendant No.1 came on record for the first time on 27.06.2005 when a copy thereof was filed by her along with her written statement. This application seeking amendments in the plaint was filed by the plaintiffs within a reasonable time after acquiring knowledge about the said sale deed.

 

7.         I have carefully examined the amendments proposed by the plaintiffs which relate only to the purported sale deed in favour of defendant No.1. In my humble opinion, the main controversy regarding the purported right, title and interest of defendant No.1 in the suit property cannot be decided unless the proposed amendments relating exclusively to the said sale deed are allowed. It may be noted that in the existing prayer (A), the plaintiffs have prayed for cancellation of documents. If this Court eventually comes to the conclusion that the plaintiffs are entitled to the relief prayed for in this Suit, then naturally the right, title and interest of defendant No.1 in the suit property will be affected, and in such an event, the purported sale deed in her favour cannot remain in the field. It is well-settled that amendments relating to any subsequent event or development that may have direct bearing to the issues involved in the Suit, the cause of action thereof and or the prayer made therein, must be allowed ; and, such amendments can be allowed by the Court even suo motu.

 

8.         In Mst. Barkat Bibi V/S Khushi Muhamamd and others, 1994 SCMR 2240, it was held inter alia by the Hon’ble Supreme Court that an alteration in the relief does not ordinarily change the character or substance of the Suit if it is based on the same averments, and if such an amendment is allowed, no injustice would be done to the other party. In SEMCO SALVAGE PTE LIMITED V/S M.V. KAPTAN YUSUF KALKAVAN and another, 1993 SCMR 593, the Hon’ble Supreme Court was pleased to hold that the proposed amendments were directly connected to the cause of action ; amendments  would not alter the nature or cause of action of the Suit ; and, technicalities should be avoided.

 

9.         It is my considered view that in case the amendments proposed by the plaintiffs are allowed, the nature, complexion or the cause of action of the Suit will not change ; and, same evidence will be led by the parties whether amendments are allowed or not.

 

10.       Foregoing are the reasons of the short order announced by me on 14.09.2015, whereby this application was allowed.

    

 

 

 

     __________________

               J U D G E