M V THOMAS Vs. PIOUS JOSEPH

JUDGEMENT

(1.) INDISPUTABLY it is, Rule 17 of Order VI of the Code of Civil Procedure (short, "the Code") empowers the court to allow either party to the proceedings before it to alter or amend his pleadings "at any stage of the proceedings" on such terms as may be just, and as is necessary for determining the real question in controversy between the parties. It is also not disputed that power to allow alteration or amendment of pleadings could be exercised by the appellate court as well. But when a request to allow alteration or amendment of pleadings is made in the appellate court, at what stage of the proceedings is the request to be considered? Is it appropriate to decide the application (for amendment of pleadings) keeping the appeal itself pending?

(2.) PETITIONER-plaintiff sued respondent for a decree for prohibitory injunction claiming right over item No.2, described as a pathway in the plaint schedule for access to item No.1. In paragraph 2 of the plaint petitioner stated that the said way was in existence even before he purchased item No.1 property. PETITIONER also pleaded public right over the said way. Trial court decreed the suit. Respondent-defendant preferred appeal as A.S. No.53 of 2009 in the court of learned Sub Jude, Pala. When that appeal was pending,petitioner filed I.A. No.2052 of 2009 seeking permission to amend the plaint to incorporate a plea of dedication over item No.2. That application was dismissed by the learned Sub Judge vide Ext.P6, order even while the appeal was pending. Exhibit P6, order is under challenge. It is contended by learned counsel for petitioner that on the facts of the case learned Sub Judge ought to have allowed I.A. No.2052 of 2009.

(3.) IT is so held since amendment of pleadings in appeal if permitted may require remand of the case. If amendment of the plaint is sought for and allowed in appeal, normally defendant is entitled tofile additional written statement. That may necessitate framing of additional issues and parties may require evidence to be adduced in respect of the additional issues. These are not matters which the appellate court should ordinarily undertake. IT is therefore held that when request for amendment which substantively affected right of parties is made in appeal, such request should be considered while hearing the appeal.