HARISH TANDON, J. - (1.) THIS revisional application is directed against an Order No. 16 dated 22nd July, 2011 passed by the learned Additional District Judge, 2nd Court at Howrah in Title Appeal No. 127 of 2009 by which an application for amendment of the written statement at the appellate stage is rejected. The opposite party instituted a suit for eviction under the West Bengal Premises Tenancy Act, 1997.
(2.) IN the written statement a plea was taken by the petitioner relating to the derivative title of the opposite party and also non-joinder of the necessary party. According to the opposite party, upon the death of the original tenant some of the heirs and legal representatives of the deceased tenant are not made party to the suit. It appears that a specific issue in this regard was framed by the trial court and on consideration of the said issue on merit it was answered against the petitioner. Even the objection as to the Title of the opposite party, was also considered by the trial court and negated on merit. By filing the proposed amendment, the petitioner intends to incorporate the factum of non-joinder of necessary party as well as challenging the derivative Title of the opposite party. It appears that the petitioner deposed before the trial court on all points including the points enumerated hereinabove and the opposite party also cross-examined him. The trial court did not reject such issue on technicalities, but decided the same on merits. Whether the reasoning of the trial court is sustainable or not, is a matter to be decided by the court of appeal below.
(3.) THERE is no doubt that the court in appropriate case may allow the parties to amend the plaint even at the appellate stage provided such amendment is necessary for complete and effective determination of the question involved therein. In my considered opinion, the proposed amendment is a smack of mala fide and is filed to delay the proceeding before the appellate court. Therefore, I do not find any illegality or infirmity in the impugned order. The revisional application is devoid on merit and is hereby dismissed. There shall, however, be no order as to costs.;