2018 S C M R 82

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Haji SULTAN ABDUL MAJEED (DECD) through Mehboob Sultan and Habib
Sultan and others---Petitioners

Versus

Mst. SHAMIM AKHTAR (DECD) through Mah Jabeen and others---

Respondents

Civil Petition No. 2028 of 2017, decided on 13th October, 2017.

(On appeal against the judgment dated 08.06.2017 passed by the Lahore High Court,
Lahore in Writ Petition No. 32872 of 2017)

(a) Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Plaint, amendment of---Alternative plea---Scope---Question as to

whether proposed amendment would change complexion of the suit---Plaintiffs filed
suit seeking declaration against the defendants that the execution of certain wills were
the outcome of coercion and undue influence exercised by the widow of the deceased
'Sujjada Nasheen' of a durbar---During the pendency of the suit, the plaintiffs moved
application under O. VI, R. 17, C.P.C. seeking amendment in the plaint by adding the
plea that the disputed wills were forged and did not bear the signatures of the deceased-
--Defendants contended that the proposed amendment would change the entire
complexion of the suit as the plaintiffs in their plaint had taken the stance that the
disputed wills were the result of coercion and undue influence, thereby impliedly
admitting that the same were executed by the deceased, but by way of proposed
amendment they were now denying the very execution of the wills on the basis of
forgery, which amounted to introducing an altogether new plea that was contradictory
to the original pleas; held, that execution of the disputed wills was challenged basically
on the ground that the deceased on account of his mental and physical health was not
in a position to voluntarily execute such wills in a proper frame of mind---Only when
the claim of the defendants surfaced on the basis of the disputed wills, the plea of undue
influence and coercion was taken keeping in view his bad state of health but it could
also give rise to the belief that even in a bad state of health (which was to be proved in
evidence) the deceased may not have executed the wills himself and hence could be the
result of forgery---By way of proposed amendment, all that the plaintiffs were seeking
was verification of the signatures of the deceased on the disputed wills, therefore, it
could not be considered to be a case of contradictory or mutually destructive pleas,
which was being introduced through the proposed amendment---At best, it could be a
plea in the alternative that could legitimately be taken in the circumstances of the case-
--Application of the plaintiffs for seeking amendment in the plaint was allowed---
Appeal was allowed accordingly.

(b) Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Plaint, amendment of---Scope---Alternative plea---When a plea in

the alternative could naturally arise and could co-exist with the main plea, which was
not taken in the plaint at the time of filing of the suit then such a plea could be introduced
by seeking amendment in the pleadings.

Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005 SC 787 ref.

Ms. Ayesha Hamid, Advocate Supreme Court and Syed Rifaqat Hussain Shah,
Advocate-on-Record for Petitioners.

Qazi Zia Zahid, Advocate Supreme Court for Respondents Nos.1 - 5.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court and Mehr Khan
Malik, Advocate-on-Record for Respondent No. 2.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent No. 3.

Date of hearing: 13th October, 2017.

JUDGMENT

FAISAL ARAB, J.---The petitioners filed a suit seeking a declaration against

the respondents that the execution of the wills dated 10.06.1992 and 25.09.1998 are the
outcome of coercion and undue influence exercised by Mst. Shamim Akhtar on her
husband Late Ghulam Jillani, the 'Sajjada Nasheen' of Durbar Hazrat Sultan Baho
whereby their minor son Fakhar Sultan was nominated as his successor.

2. During the pendency of the suit, the petitioners moved an application under
Order VI, Rule 17, C.P.C. seeking amendment in the plaint by adding the plea that the
disputed wills were forged and do not bear the signatures of Late Ghulam Jillani.
Considering this application to be contrary to the case set up in the plaint, the same was
rejected by the Senior Civil Judge on 21.09.2013. All proceedings upto High Court
challenging rejection of said application also failed. The main reason that prevailed with
the learned Judge of the High Court in rejecting the writ petition of the petitioners vide
impugned order dated 08.06.2017 was that adding the plea of forgery with coercion and
undue influence would change the entire complexion of the suit. It was further held that
the plea based on the proposed amendment could have been easily taken at the time of
filing of the suit and there was no justification to wait for such a long period of time to
come up with a new plea aggrieved by such decision, the petitioners have filed the
present petition seeking leave to appeal.

3. Learned counsel for the petitioners argued that the amendment sought by the
petitioners would not change the complexion of the suit rather it would facilitate the
court to reach a just decision and the refusal to grant the proposed amendment on the
ground of causing delay in the proceedings was not justified. In support of her case, she
mainly relied upon the cases of Budho v. Ghulam Shah (PLD 1963 SC 553), Abdul
Rashid v. Muhammad Tufail (PLD 1992 SC 180), Ghulam Bibi v. Sarsa Khan (PLD
1985 SC 345) and Nazir Hussain Rizvi v. Zahoor Ahmad (PLD 2005 SC 787).

4. Learned counsel for respondent No. 3 in reply to the petitioners' counsel's

argument submitted that the proposed amendment would change the entire complexion
of the suit as the petitioners in their plaint had taken the stance that the disputed wills
are the result of coercion and undue influence, thereby impliedly admitting that the
same were executed by Late Glaulam Jillani with the only caveat that the same were
procured by exercising coercion and undue influence. Therefore, now denying the very
execution of the wills on the basis of forgery amounts to introducing an altogether new
plea that is contradictory to the original pleas and thus all the courts below rightly
rejected the petitioners' application. Reliance was placed on the cases of Secretary to
Government v. Abdul Kafil (PLD 1978 SC 242), Imam Hussain v. Sher Ali Shah (1994
SCMR 2292), Muhammad Hussain v. Sani Husain (2000 SCMR 391), Ghulam Haider
v. Muhammad Ayub (2001 SCMR 133), Muhammad Amin v. Zahid Mehmood (2005
CLD 982), Abid Ullah Malik v. Additional District Judge (PLD 2013 SC 239),
Muhammad Ali v. Dabir Ali (2016 SCMR 2164), B.K. Narayana Pillai v.
Parameswaran Pillai ((2000) 1 Supreme Court Cases 712) and Heeralal v. Kalyan Mal
(AIR 1998 SC 618).

5. As regards to the findings in the impugned judgment that the proposed

amendment has been sought belatedly, we have noted that in many instances a party
interested in seeking delay in the proceedings move such applications and use it as a
tool to delay the conclusion of the trial. However, in the present case it is difficult to
impute such an intention as the petitioners are very much interested in seeking the
declaration in the suit at the earliest for the reason that the delay in the proceedings
would not serve their cause. The office of the Sajjada Nasheen is already being enjoyed
by the other side. So in seeking the proposed amendment, the intention to delay the
proceedings cannot be attributed to the petitioners.

6. As to the other ground that through the proposed amendment, a contradictory

plea is being introduced which would change the entire complexion of the case, we are
of the view that the execution of the disputed wills was challenged basically on the
ground that Late Ghulam Jillani on account of his mental and physical health was not
in a position to voluntarily execute such wills in a proper frame of mind. Therefore,
keeping this plea in sight the wills were considered by the petitioners to be an outcome
of undue influence and coercion. By taking such plea, it cannot be said that the
petitioners also had first-hand knowledge of the execution of the wills by Late Ghulam
Jillani himself. It was only when the claim of the respondents surfaced on the basis of
the disputed wills, the plea of undue influence and coercion was taken keeping in view
his bad state of health but it can also give rise to the belief that even in a bad state of
health (which is to be proved in. evidence) Late Ghulam Jillani may not have executed
the wills himself and hence could be the result of forgery. So through the proposed
amendment, all that the petitioners are seeking is verification of the signatures of Late
Ghulam Jillani on the disputed wills. Therefore, we do not consider it at all to be a case
of contradictory or mutually destructive pleas, which is being introduced through the
proposed amendment. At best, it could be a plea in the alternative that can legitimately
be taken in the circumstances of the case. When a plea in the alternative can naturally
arise and can co-exist with the main plea, which was not taken in the plaint at the time
of filing of the suit then such a plea can be introduced by seeking amendment in the
pleadings. To hold this view, we are fortified by the judgment of this Court passed in
the case of Nazir Hussain Rizvi v. Zahoor Ahmad (PLD 2005 SC 787) wherein it was
held as under:-

"6. There is no cavil with the proposition that the proposed amendment can
neither change the complexion of the suit nor introduce a new cause of action.
"No amendment will be allowed where its effect would be to convert the
character of the suit." (Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja
v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. m.v. Titisee
PLD 1993 SC 88 and more so the fundamental character of the suit including the
subject-matter and cause of action cannot be allowed to be substituted. "(Ghulam
Bibi v. Sarsa Khan PLD 1985 SC 345, Ghulab v. Fazal Illahi PLD 1955 Lah.
26). It is, however, to be kept in view that subject to certain exceptions "even
alternative and inconsistent pleas may be allowed to be raised by way of
amendment." (Ghulam Ali v. Pakistan PLD 1960 Kar. 581, Alauddin v. Central
Exchange Bank Limited (PLD 1960 Lah. 446) "or a new ground of claim can be
introduced because merely introduction of fresh matter cannot alter the nature of
the suit and leave ought not be refused in such cases." (Muhammad Essa v.
Hasseena Begum 1989 SCMR 476). A line of distinction is to be drawn between
'an alternative case' and 'an inconsistent case' which are neither synonymous nor
interchangeable. A similar proposition was examined in case Budho v. Ghulam
Shah (PLD 1963 SC 553) wherein it, was held that no two facts can be said to be
inconsistent if both could have happened and the test of inconsistency is that a
 plaint which contains both cannot be verified as true but a party can put forward
more than one source of his right or defence in which case he is pleading in the
alternative. The judicial consensus seems to be that an alternative or inconsistent
plea can be raised but contradictory and mutually destructive pleas cannot be
taken."

7. The case law cited by the learned counsel for the respondents in the facts and
circumstances of this case is distinguishable as all that we have held in this case is that
where a plea in the alternative can be taken in the suit then such a plea can also be
introduced by seeking amendment to the plaint, in case the circumstances so permit.

8. For what has been discussed above, this petition is converted into an appeal and
allowed, the impugned judgment is set aside and the application of the petitioners for
seeking amendment in the plaint is allowed.

MWA/S-26/SC Appeal allowed.