Tarun Agarwala - (1.) HEARD Shri V. C. Mishra, the learned senior counsel for the petitioner and Shri Prakash Gupta, the learned counsel for the opposite party.
(2.) THE plaintiff filed a suit for ejectment of the defendant and for possession of the property. This suit was eventually dismissed by the trial court, against which, a civil appeal was filed. An application under Order VI, Rule 17 of the Code of Civil Procedure was filed by the defendants seeking permission of the Court to amend its written statement and incorporate paragraphs 30A to 30J after paragraph 30 of the written statement. The defendants contended that during the pendency of the appeal, the appellant filed two documents, Paper Nos. 41C and 50C, which indicate that a fraud was committed by the heirs of Khadim Ali, and that, the judgment given by the Supreme Court in Jafar Ali Shah (Dr.) v. Assistant Custodian of Evacuee Property, Jhansi, AIR 1967 SC 106, was an outcome of fraud, and therefore, it becomes necessary and imperative to amend the written statement. This application was rejected by the lower appellate court, against which, the present writ petition has been filed. Having heard the learned counsel for the parties, this Court is of the opinion that the present writ petition is not maintainable against an order passed by the lower appellate court. The appropriate remedy was to await the result of the appeal and, if aggrieved by the appellate order, the defendant could have challenged the order rejecting the amendment application in an appropriate second appeal by taking a ground as provided under Section 105, C.P.C.
(3.) HOWEVER, since the present writ petition was entertained and an interim order staying further proceedings in the appeal was passed, this Court is deciding the matter on merit. The Court finds that the petitioner is not entitled for any relief. The amendment sought is basically based on two documents, namely, Paper Nos. 41C and 50C, filed by the plaintiff-appellant. It is not clear as to whether these documents have been admitted and exhibited pursuant to an application under Order XLI, Rule 27, or it has only been filed through a miscellaneous application. If these documents have been admitted and are exhibited, then it will have evidentiary value, otherwise, it is only a piece of paper, and no cognizance of it can be taken by the court below. If it has been exhibited, the defendant would have a remedy to lead evidence against those documents, or file such additional evidence, by way of rebuttal, to support his stand, but could not be permitted to amend the written statement. Documents are filed to support the plaint case or the evidence of the petitioner in the written statement. Filing of documents cannot lead to amendment of the written statement. The defendant could only be permitted to lead additional evidence, if he so desires.;