- (1.) A. K. Yog, J. Learned Counsel for the petitioner has urged only one short point and stated that there is no other point.
(2.) IN order to challeage the order of the Court below allowing amendment ap plication in release proceedings pending at appellate stage under U. P. Urban Build ings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act'), the con tention of the learned Counsel for the petitioner is that family settlement was (sic) to manufacture can a ground of bona fide need by putting the accommodation in question in the lot of such co-sharer who could establish his bona fide need and com parative hardship at a stage when the exist ing owner landlord had realised that he could not establish his case. Whether fami ly settlement is genuine and bona fide has to be adjudicated by concerned Court while deciding the appeal after parties have led evidence and the Appellate Court adjudicates upon the said issue. The said contention of the petitioner is also regarding the merit of the pleadings sought to be incorporated by amendment. It is too late to challenge amend ment by showing falsity in the pleadings sought to be incorporated by amendment. This Court as well as apex Court have time and again held that amendment ought to be allowed howsoever, belated provided the other side can be compensated; nature of the suit is not entirely changed and lastly the amendment sought is not mala fide.
(3.) LEARNED Counsel for the petitioner submitted that he had taken an objection while contesting amendment of the said amendment being mala fide (Annexure 6 to the writ petition ). LEARNED Counsel for the petitioner, however, failed to point out from the petition that such a plea was not only urged in the objection but also pressed before the Court below. LEARNED Counsel for the petitioner concedes that there is no such averment in the writ peti tion. In absence of a categorical averment as above Court will not interfere with the order of the Court below. Judgment and order of the Court below cannot be as sailed on the ground that certain plea taken in the objections does not find men tioned in the judgment unless such an ob jection was really pressed and notice of the Court was invited to adjudicate on the said point. The mere fact that a family settle ment that taken place will not raise a presumption of its being collusive. Parties are free to settle their affairs of mutual agreement through family settlement. If such a settlement is a device to frustrate mala fide the defence of the tenant then certainly the tenant should have led evidence on the point and passed the plea and got it adjudicated in appeal. It will be open to the tenant to raise the objection regarding family settlement being col lusive while the appeal itself is being adjudicated. The Court below in appeal allowed amendment application. The main appeal is still pending. I find no manifest error apparent on the face of record in view of the decision of the Supreme Court reported in AIR 1969 SC1267. The writ petition is misconceived and lacks merits.;