Soumen Sen, J. - (1.) THE suit filed by the plaintiff for recovery of khas possession, damage and mesne profit was dismissed on contest by the judgment and order dated 17th February, 2005. The plaintiff alleged that the defendant was defaulter in payment of rent since 1984 and violated clauses (m),(o) and (p) of Section 108 of the Transfer of Property Act by installing a very big printing machine without the consent of the plaintiff.
(2.) THE learned trial Judge upon evidence and contested hearing dismissed the suit by recording a finding that it is an admitted position that the suit premises was let out to the defendant for the purpose of running a printing press. The eviction on the ground of default also did not succeed. In the appeal, the petitioner filed two applications namely an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint and a further application under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence at the appellate stage. In the amendment application the petitioner sought to incorporate that at page '3' paragraph '7' sub paragraph 1 of the third line in between the word 'big' and 'printing' lithograph should be incorporated and sought to introduce that the lithograph printing machine is totally different from printing press and on that basis suggested amendment to paragraph '7' sub paragraph '1' which runs into four sub paragraphs. The plaintiff this time by incorporating lithograph wants to suggest that lithograph printing machine was not permitted to be installed in the suit premises and before installing such machine, no consent was obtained. In paragraph (ic) the plaintiff faintly tried to introduce a case that the plaintiff should be permitted to evict the defendant in view of change of user which is based on the assumption that lithograph printing machine was installed and it is not merely an ordinary printing machine; The said amendment application was dismissed by the appellate Court on the ground that the same if allowed would virtually reverse or affect the findings already arrived at on the basis of the pleadings of the respective parties.
(3.) THIS Court agreed with the view expressed by the appellate Court in holding that no court should entertain an amendment of the original pleading at the appellate stage in order to make judgment and decree of the learned trial Court otiose. Even if one accepts for the sake of argument that a heavy printing machine was installed, the plaintiff has already prayed for eviction on the basis of violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and having failed to obtain a decree, the introduction of lithograph printing machine is only an attempt to have a fresh trial on the issues which have already been decided on the basis of the evidence. In fact the purpose of amendment is to reopen the entire matter.;