D.S. Bajpai, J. - (1.) THIS defendants' second appeal under Section 100 of the Code of Civil Procedure challenges the judgment and decree dated 6 -7 -1979 passed by the Civil Judge, Sitapur, dismissing Civil Appeal No. 56 of 1977 affirming the judgment and decree dated 16 -12 -1976 passed in plaintiff's suit No. 148 of 1971 with some modifications. Facts giving rise to this second appeal, as are material for the decision of this second appeal, are that the plaintiff filed original suit No. 148 of 1971 against the defendants for a declaration that the room marked as in the site -plan annexed as part of the plaint was held by defendants 1 and 2 as the plaintiff's tenants on a monthly rent of Rs. 6.75 P. and for a decree of Rs. 243/ - for recovery of arrears of rent against the said defendants. It was further claimed that the gallery in the site -plan was the plaintiff's passage and that an injunction be issued restraining the defendants 3 to 11 from using this gallery. Subsequently, in place of defendant No. 3 defendants 3/1 to 3/7 have been impleaded in place of the deceased defendant No. 3 and defendants 4/1 and 4/2 in place of defendant No. 4. The trial Court decreed the suit in terms of judgment and decrees referred to herein above. During the trial the defendant No. 3/8, it appears, filed an application for amendment of the written -statement, 115 -Ka, dated 20 -8 -76 under Order VI, rule 17 of the Code and prayed for insertion of the plea by adding some sentences in paragraph 33 of the written -statement. The plea ought to be incorporated was that after the family partition of 1946 neither the plaintiff nor his predecessor Bhola Nath or his father Jai Narain was ever in possession of the room and/or gallery in dispute and if he had any rights in them, they stood extinguished since the defendants had matured their right by adverse possession and as such the suit for declaration was not maintainable and was barred by time. This application for amendment was rejected by order of the Court dated 4 -12 -76 on which date the Court proceeded to frame an issue No. 5. The same day the Court rejected it on the technical plea that no affidavit had been filed along with the application fixing 6 -12 -76 for arguments on issue No. 5. On 6 -12 -76 the Court recorded the statement of the Counsel for the respective parties that no evidence was to be adduced on issue No. 5 fixing 8 -12 -76 for arguments. Thereafter on 8 -12 -76 the Court directed the case to come up on 13 -12 -76 for further hearing and on 16 -12 -76 the Court passed the judgment and decree giving rise to the second appeal No. 56 of 1977. The lower appellate Court vide its order dated 6 -7 -79 modified the decree to the extent that arrears of rent of Rs. 243/ - be realised from defendant Nos. 3 to 11 and not from defendant Nos. 1 and 2. The other part of the decree of the trial Court was affirmed.
(2.) I have heard learned Counsel for the parties and perused the records of the two Courts below. It has been argued by the learned Counsel for the appellants that the trial Court having rejected the application for amendment prejudiced the defendants' case, more so when the trial Court has observed in its judgment that no such plea sought to be brought by the proposed amendment has been raised by the defendants in their written -statement. He has further submitted that in view of this legal infirmity which was a substantial question of law, the judgments of the two Courts below deserve to be set aside. I find substance in this plea, more so when the Courts below had neither recorded the evidence nor did the plea sought to be raised required adjournment of the case for a long time and this plea went to the root of the matter in taking this view. It will be worthwhile to consider the case of Ishwardas v. State of Madhya Pradesh : A.I.R. 1979 S.C. 551 in which the Supreme Court was pleased to take the view that amendment of pleadings should not be refused and, in fact, amendment of pleadings have been permitted even at the appellate stage with a view to further the ends of justice, more so when the nature of the case was not changed by the proposed amendment. The Court was pleased to observe: There is no impediment or bar against an Appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court.
(3.) IN fact, the Supreme Court in the case of Vineet Kumar v. Mangal Sain : A.I.R. 1985 S.C. 817 has gone to the extent of permitting amendment to the pleadings for addition of new facts and has viewed that: Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation.;