ARUNDHATI MISHRA Vs. SRIRAM CHARITRA PANDEY

JUDGEMENT

(1.) Leave granted.

(2.) This appeal arises against the judgment of the Allahabad High court in Second Appeal No. 89 of 1990 dated December 21, 1992. The facts in a nutshell are that the appellant-plaintiff basing on title laid the suit for possession and mesne profits against the respondent. The respondent was inducted into possession of M. I. G. flat allotted to her by the Lucknow improvement Trust later renamed as Lucknow Development Authority, The rent was Rs. 30. 00 per month. It was covenanted that the respondent should pay every month a sum of Rs. 24.50 to the L. I. T. /l. D. A. and the balance to the appellant. On 15/03/1971, the appellant got issued a notice under section 106 of the T. P. Act determining the tenancy for default committed in payment of the rent. Thereon, the respondent replied that the appellant was only his benamidar and he is the real owner of the property. The appellant paid the instalments and got the sale deed executed in 1977 by L. I. T. or l. D. A. Suit notice was issued in 1978 on the ground that the denial of the appellant's title constitutes forfeiture of the tenancy which the respondent had with the appellant. The respondent reiterated in his written statement that he is the real owner and remained in possession as owner of the suit house and the appellant is only benamidar. The respondent also later filed an application under Order 6 Rule 17, Civil Procedure Code to add para 21-A claiming alternatively compensation for the improvements made by him. Framing appropriate issues and on adduction of evidence, the trial court found that the appellant has title to the property, by denial of the title, the respondent forfeited his tenancy and decreed the suit. Pending first appeal, the respondent filed another application on 30/03/1989 for amendment of the written statement setting up the plea of "adverse possession". The appellate court rejected the application, considered the case on merits and confirmed the decree of the trial court. In the second appeal the learned single Judge considered and allowed the application for amendment, set aside the findings of the courts below and remitted the case to the trial court for fresh trial. Thus this appeal by special leave.

(3.) It is settled law as laid down by this court in Firm Sriniwas Ram kumar v. Mahabir Prasad that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. Buteach case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted.