Before Tariq Mehmood Jehangiri, J

Jammu and Kashmir Cooperative Housing Society —Petitioner

 Versus

 Gulraiz Mehmood —Respondents

Writ Petition No. 2016 of 2022, decided on 1th June, 2022.

JUDGMENT

 BEFORE TARIQ MEHMOOD JEHANGIRI, J

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has challenged order dated 06.01.2022, passed by Civil Judge 1st Class, East-Islamabad, whereby the application filed by the petitioner under Order VI, Rule 17, C.P.C., for amendment in written statement, was dismissed.

  1. Succinctly stated facts of the case are that respondents No. 1 to 3 filed suit for declaration and permanent injunction 2 Writ Petition No. 2016 of 2022 against the petitioner and 02 other defendants.
  2. Written statement was filed and petitioner / applicant filed an application for amendment of written statement under Order VI Rule 17, CPC, which was dismissed vide order dated 06.01.2022.
  3. Learned counsel for the petitioner inter alia contends that the impugned order passed by leaned Trial Court is not a speaking order; learned Trial Court has not given cogent and valid reasons for rejection of application; valuable and fundamental rights of the petitioner have been jeopardized; the proposed amendment is in accordance with law; the impugned order is erroneous, hence liable to be set-aside. Learned counsel has relied upon the cases titled as Lahore Development Authority and others Vs. Sultan Ahmad and another (2007 SCMR 1682), Gulzar Ahmad Vs. Additional District Judge 3 Writ Petition No. 2016 of 2022 and others (2019 CLC 1432) & Juma Khan Vs. Ayub and 8 others (PLD 2018 Balochistan 1).
  4. Arguments heard, record perused.
  5. Respondents No. 1 to 3 filed a suit for declaration and permanent injunction on 26.03.2018, para-03 of the plaint is reproduced hereunder for ready reference;- “That the defendants who is a housing society, has launched its project near the suit land, deputed the defendants no. 2 and 3 who are very influential, trying to dispossess the plaintiffs in order to change the nature of the suit land by carving the plots, roads etc over the suit land illegally and unlawfully, knowing this fact that they have no concern whatsoever with the suit land.”
  6. The petitioner has filed written statement in the learned Trial Court on 02.10.2018, wherein he replied Para No. 3 of the plaint, as under;- “That Para no. 3 is to the extent 4 Writ Petition No. 2016 of 2022 of society is correct. Rest of para is wrong and incorrect hence denied.”
  7. Thereafter, issues were framed, evidence of the respondents / plaintiffs was recorded / closed and the case was fixed for recording of evidence of the petitioner.
  8. The petitioner has neither enclosed copy of order sheet of the learned Trial Court nor disclosed very important facts in respect of date of framing of issues, closing date of evidence of the respondents, as well as number of opportunities granted to him for production of his evidence even when these questions were asked from the learned counsel for the petitioner he was unable to give the relevant dates which are every important and necessary for the just and proper decision of the case.
  9. In the month of June 2021 i.e. after delay of more than three (03) 5 Writ Petition No. 2016 of 2022 years of filing the suit, framing of issues and recording / closing of evidence of respondents, application U/O VI, Rule 17, C.P.C., with regard to the amendment of written statement was filed.
  10. The proposed amendment / substitution of Para-03 of written statement is reproduced as under;- “That Para-3 is totally incorrect and denied. In fact, as per documents attached with the plaint, the status of the plaintiff is that of Haqdar Shamlat but he is not recorded in possession of any piece of Shamlat Land. On the other hand the Society purchased land measuring 121 Kanal 4 Marla long before and developed the same by laying the infrastructure of metal roads and other development works in the year 2010. The instant suit was filed in the year 2018. As per Khasra Gardawari the answering defendant is recorded in possession of Khasra numbers 318 Min and 316/1 of Mouza Panuwal, Islamabad. The answering defendant is owner in 6 Writ Petition No. 2016 of 2022 possession of actually purchased land Measuring 121 Kanal 4 Marla and is not in possession of any extra piece of land. Contrarily, the plaintiff has avoided to attach Jamabandi Zar-e-Kar just to conceal his present status of Haqdar in the Shamlat land. However, the Society has not started any development work in the land owned and possessed by anyone else including the plaintiffs.”
  11. When asked that whether facts of the proposed amendment were in the knowledge of petitioner at the time of filing of written statement, learned counsel for the petitioner stated that “inadvertently” these facts were not incorporated / mentioned in the written statement.
  12. There is no logic that the facts which are in knowledge of parties if not mentioned at the relevant time can be allowed to be mentioned at any time during the course of trial, as it will cause inordinate delay in deciding the 7 Writ Petition No. 2016 of 2022 matter, if the parties are allowed to make amendments in pleadings after many years of filing the suits / petitions etc. without any lawful / plausible justification, then the cases cannot be decided and delayed for an indefinite period.
  13. If the proposed amendment is allowed, the amended written statement will be filed as well as the application for framing amended issues will also be filed, then again the plaintiff will be required to produce evidence and the case will linger on for many years.
  14. The proposed amendment will also change the nature of the defense taken by the petitioner and would amount to make improvement which is not permissible under the law.
  15. The impugned order dated 06.01.2022, is interlocutory order which has not been made appealable under 8 Writ Petition No. 2016 of 2022 Section 104 read with Order XLIII, Rule 1 C.P.C. and pursuant to Section 15 of the Code of Civil Procedure (Amendment) Act, 2020, Section 115 C.P.C stands substituted in a manner that an order which is not appealable is no more revisable. The said substituted Section reads as following:- “115. Revision.- Any party aggrieved by an order under Section 104, passed by the Court of District Judge or Additional District Judge in an appeal against an interlocutory order passed by a Civil Judge or Senior Civil Judge, as the case may be, may within thirty days of the said order may file a revision to the High Court on an obvious misapprehension of law or in respect of a defect in jurisdiction.”
  16. Now the said statutory amendment does not allow revision against a non-appealable interlocutory order. The said statutory bar cannot be circumvented by challenging such an 9 Writ Petition No. 2016 of 2022 interlocutory order in the Constitutional jurisdiction of the High Court. A party aggrieved by such an interlocutory order has to wait until a Civil Court passes a final order and then to challenge it in an appeal. This is because an interlocutory order merges into the final verdict. The purpose behind barring a revision against an interlocutory order is to avoid delay in disposal of the cases. Reference in this regard may be made to a case titled as Syed Saghir Ahmad Naqvi Vs. Province of Sindh (1996 SCMR 1165), wherein it has been held as follows:- “The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders”. 10 Writ Petition No. 2016 of 2022 Similarly in a case titled as Ms. Afshan Ahmed Vs. Habib Bank Limited (2002 CLD 137), it was held as follows:- “It is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to the principles of interpretation of statute the Court would not act in a manner by which the object of a statute is defeated and the same is rendered nugatory.”
  17. The scope of writ of certiorari is very limited, it has been held by the Hon’ble Supreme Court of Pakistan that unless patent legal defect and material irregularity is pointed out, the orders cannot ordinarily be interfered by the 11 Writ Petition No. 2016 of 2022 High Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reliance is placed upon the cases reported as 2019 SCMR 919, PLD 2018 SC 28, 1996 SCMR 1165 and 1976 SCMR 450.
  18. Learned counsel for the petitioner has failed to point out as to how the impugned order is not in consonance with law or without jurisdiction or in excess of jurisdiction, hence the instant writ petition is not maintainable and the same is dismissed in limine being meritless with no order as to costs.