JUDGMENT

Sharma J:

This is the third day of the hearing of this suit. The whole suit revolves on pure and important questions of law, mostly of constitutional law. The parties had agreed upon facts and it was further agreed that on the basis of those facts alone and some evidence which had already been led before those facts were agreed upon the Court should proceed to consider and determine the rights of the parties. The material evidence in this case is all documentary which forms part of agreed bundles 'A' and 'B'.

The learned Counsel for the plaintiff has in order to meet an objection raised by the learned Senior Federal Counsel made an application for amendment of the statement of claim by adding para. 4(a) thereto. The proposed amendment reads:

The plaintiff contends that reg. 44 of the Public Officers (Conduct and Discipline) (General Orders) Regs. 1969 is null and void and ultra vires the provisions of Ordinance No. 1 of 1969 and Article 150 of the Constitution.

The learned Senior Federal Counsel has objected to the amendment on the following grounds:

(a) It is not a bona fide application because the plaintiff had sufficient notice that in terminating the services of the plaintiff, the Government was acting under Reg. 44 and that if this regulation was sought to be challenged a plea to that effect should have been taken in the very first instance;

(b)The amendment will cause prejudice to the Government because it may be that the plaintiff may be able to succeed on "this cause of action";

(c)The amendment seeks to introduce a new cause of action.

The law is that if a party intends to apply for determination of a point of law he must raise it on his pleadings. But at the trial itself he may raise a point of law open to him even though not pleaded and in a proper cape the Court will allow the party to amend his pleadings so as to raise a point of law for argument.

The general principles of granting leave to amend pleadings were laid down by Bramwell LJ, in the case of Tildesley v. Harper 10 Ch D 386, 397 where he said:

My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.

Brett MR in Clarapede & Co. v. Commercial Union Association 32 WR 263 said:

However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.

The only question which arises in this case is whether the plaintiff was wrongfully dismissed and he certainly had a right to challenge the validity of reg. 44 of the Public Officers (Conduct and Discipline) (General Orders) Regs. 1969 in the first instance. He is asking the Court to declare that the order of his compulsory retirement, termination of service, removal, dismissal or whatever name is attributed to it should be declared null and void as it offends the provisions of the Constitution and the rights guaranteed to him thereunder. The only point which is involved in the determination of the suit is a question of law or constitutes a series of questions of law. I am not inclined to think that in the position in which the plaintiff is the present application can be called mala fide . He has no doubt brought the Government to Court and the Government itself has as much right to fight and resist the claim of the plaintiff as has any other individual in a Court of law. It is, however, sometimes said that in dealing with its subjects and citizens the State ought to be a little magnanimous in its attitude to allow its subjects to fully air their grievances in Courts of justice and not put in procedural impediments in their way. The Government has its rights under the law and I am bound to respect those rights in the sa