(1.) this is defendant's second appeal. The facts leading to this appeal may be briefly stated and they arc as follows: first respondent-plaintiff - k.t. nagakumariah initiated proceedings under Section 21 of the Karnataka Rent Control Act in h.r.c. No. 14/1974 in the court of the munsiff at tumkur seeking eviction of one k.g. vardhamanaiah, since deceased, inter alia on the ground that he was a tenant of the suit schedule property of which the petitioner was the owner and that he had failed to pay the rent within the time stipulated despite the notice issued. That petition under the Rent Control Act was resisted by the said late vardhamanaiah respondent herein, inter alia on the ground that the petitioner was not the owner and that he was not his tenant; that he had acquired title himself. In that circumstance, the petition filed by the plaintiff came to be dismissed directing the parties to have their respective rights in regard to the title adjudicated in the appropriate forum, namely, the civil court. Thereafter, in 1976, the plaintiff filed the suit in the court of the munsiff which was numbered as o.s. No. 197/1976 seeking possession of the suit schedule premises pleading infer alia that he was the owner of the suit properly having succeeded to the same as his father thimmappa had purchased the suit property in a public auction held in the month of april, 1929 by the tahsildar in regard to a mortgage decree obtained by the mortgagee and confirmed by november, 1929 pursuant to which ext. P. 1 the sale certificate was issued by the revenue authorities. In defence of the suit claim for possession on such essential pleading, defendant. Pleaded that he had been inducted as a tenant by misre presentation made by the plaintiff: that he was the owner of the suit schedule property; that he had came to know of such fraud later and that he also came to know that the property belonged to one ananthamma and not thimmappa and ananthamma's successor was one chandra keerlhi from whom he had purchased for valuable consideration the suit schedule property and therefore he was the owner of the suit schedule premises and the plaintiff was not entitled to seek possession of the suit property. On such pleadings, the trial court framed as many as 5 issues, the first of which was: whether the plaintiffs prove their possession over the suit schedule property which incidentally arose to grant the prayer for possession. It may, in this connection, be noted at this stage itself that the trial court failed to frame any issue in regard to the title of the defendant which he had pleaded independently. After considering the evidence adduced by the plaintiffs as well as the defendant, the suil of the plaintiffs was dismissed with costs. One of the reasons being that the suit was bad for non-joinder of parlies. It may be noticed here that the plaintiffs examined 3 witnesses in support of their case and got marked as many as 14 documents including sale certificate dated 6-11-1929, in favour of thimmappa, the father of the firsl plaintiff. Defendant in support of his case examined himself and 6 other witnesses and got marked as many 9 documents said to have been obtained from chandr akcerthi. On appeal by the unsuccessful plaintiffs, the addl. Civil judge, tumkur, in r.a. No. 54/1987 reversed the findings and granted relief to the plaintiffs and decreed the suit for declaration of title to the suit schedule property as well as possession.
(2.) it will be useful at this stage to notice that during the proceedings before thelower appellate court, an application was filed by the plaintiffs to amend the pleadings to include the relief of declaration of title. That was seriously objected lo by the defendant who had by then died and was represented by his legal representatives numbering 7. It was argued thai the amendment if allowed would be permitting the plaintiffs to bring a suit for declaration of title beyond the lime prescribed under the Limitation Act; thai they had ample knowledge of denial of title even in the proceedings initiated in the rent control court and prior to that, when notice issued by the plaintiffs was replied to by the defendant. But those objections were over-ruled and amendment c'ame to be allowed not by a separate order but in the course of the judgment itself. The learned civil judge, after noticing the pleadings on either side and the issues framed and the findings recorded by the trial court, formulated the following points for his consideration and determination, which are as follows:-
(3.) in this court, more or less the same arguments which were urged before thelearned civil judge in the first appeal have been urged by Mr. H.j. sundar kumar. Firstly, he has contended that the amendment should not have been allowed; secondly that he had no opportunity to file an additional written statement: thirdly that he had no opportunity to prove his lille; fourthly, that the amendment was required to be carried oul only after the judgment which was impermissible; lastly that the suit was barred by lime. I do not think these questions should detain me long. It is seen from the summary of pleadings in the judgments of both the courts that plaintiffs had pleaded that they were the owners of the suit schedule property and in the written statement, the defendant (since deceased, by his legal representatives) had denied that title and claimed title in himself. Therefore, question of giving an opportunity to file additional written statement after the amendment would not arise as that part of the pleading was not sought to be amended. What was included by the amendment application was to add an additional relief of declaration of title on the same pleadings. Therefore, the lower appellate court correctly reasoned oul that there was .sufficient opportunity as is evidenced by the judgment itself that the defendant loo contested the amendment application filed objections and addressed arguments. Only appliealion was allowed in the course of the judgment and not by a separate order. The learned counsel contended that cannot be done. I do not think he is on firm ground to contend as such. Court is free to pass orders on inter locutory applications not necessarily when they are heard and argued but also while disposing of the suit or the appeal as the case maybe. Unless by doing so, the parties arc able id show, dial prejudice has been caused to them by such action. In this case, no prejudice as such is caused. The defendant had already denied plaintiffs lille. In lact the trial court had failed to frame an issue, as burden of proof to establish his lill was on the defendant also. Despite that, he got marked the sale deed in his name in evidence and examined the witnesses to prove his lille on which the trial court had not pronounced. It was the reason that the appellate court came to the conclusion that Ex. P-1 established clear title in favour of the deceased. Then by implication, the plea of lille the defendant set up must be assumed to have been denied after considering the evidence. Such finding is a finding recorded and must be treated as a finding on fact which docs not give rise to any question of law. In this court Mr. H..1. Sundar kumar has been unable to demonstrate how he has been prejudiced beyond saying that he should have been given an opportunity to file his written statement. I do not see what purpose would have been served when plaintiffs lille was denied by the defendant in his first written statement itself. By objecting to the amendment, he had blindly said that the plaintiff was not emitled to the relief of declaration. Therefore, he had sufficient opportunity in contest the amendment. It is now well settled principle that the amendment of pleadings having regard to order 6, Rule 17, C.P.C. itself is permissible at any stage of the suit and that includes the appellate stage. In the result, there was no error of law committed by the. Judge by allowing the amendment at the stage of the first appeal as long as il would serve the ends of justice. If so, ihc decision of the Supreme Court in the ease of M/s. Ganesh Trading Co. V Atojiram, AIR 1978 SC 484 is attracted. Ii there is no prejudice caused and if there is no change of cause of action and if ihe defendant who had adequate opportunity to resist the amendment appliealion, the points urged in this court do not survive for consideration as questions of law.