TARUN AGARWALA, J. - (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 6, 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. Vs. 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.
(3.) 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 CPC.;