BASANT NARAIN Vs. HIRA LAL

JUDGEMENT

(1.) THIS defendants' second appeal under Section 100 of the Code of Civil Procedure challenges the judgment and decree dated 6 -7 -1979 passed by the Civil Judge, Sitapur, dismissing Civil Appeal No. 56 of 1977 affirming the judgment and decree dated 16 -12 -1976 passed in plaintiff's suit No. 148 of 1971 with some modifications. Facts giving rise to this second appeal, as are material for the decision of this second appeal, are that the plaintiff filed original suit No. 148 of 1971 against the defendants for a declaration that the room marked as in the site -plan annexed as part of the plaint was held by defendants 1 and 2 as the plaintiff's tenants on a monthly rent of Rs. 6.75 P. and for a decree of Rs. 243/ - for recovery of arrears of rent against the said defendants. It was further claimed that the gallery in the site -plan was the plaintiff's passage and that an injunction be issued restraining the defendants 3 to 11 from using this gallery. Subsequently, in place of defendant No. 3 defendants 3/1 to 3/7 have been impleaded in place of the deceased defendant No. 3 and defendants 4/1 and 4/2 in place of defendant No. 4. The trial Court decreed the suit in terms of judgment and decrees referred to herein above. During the trial the defendant No. 3/8, it appears, filed an application for amendment of the written -statement, 115 -Ka, dated 20 -8 -76 under Order VI, rule 17 of the Code and prayed for insertion of the plea by adding some sentences in paragraph 33 of the written -statement. The plea ought to be incorporated was that after the family partition of 1946 neither the plaintiff nor his predecessor Bhola Nath or his father Jai Narain was ever in possession of the room and/or gallery in dispute and if he had any rights in them, they stood extinguished since the defendants had matured their right by adverse possession and as such the suit for declaration was not maintainable and was barred by time. This application for amendment was rejected by order of the Court dated 4 -12 -76 on which date the Court proceeded to frame an issue No. 5. The same day the Court rejected it on the technical plea that no affidavit had been filed along with the application fixing 6 -12 -76 for arguments on issue No. 5. On 6 -12 -76 the Court recorded the statement of the Counsel for the respective parties that no evidence was to be adduced on issue No. 5 fixing 8 -12 -76 for arguments. Thereafter on 8 -12 -76 the Court directed the case to come up on 13 -12 -76 for further hearing and on 16 -12 -76 the Court passed the judgment and decree giving rise to the second appeal No. 56 of 1977. The lower appellate Court vide its order dated 6 -7 -79 modified the decree to the extent that arrears of rent of Rs. 243/ - be realised from defendant Nos. 3 to 11 and not from defendant Nos. 1 and 2. The other part of the decree of the trial Court was affirmed.

(2.) I have heard learned Counsel for the parties and perused the records of the two Courts below.

(3.) IN fact, the Supreme Court in the case of Vineet Kumar v. Mangal Sain : A.I.R. 1985 S.C. 817 has gone to the extent of permitting amendment to the pleadings for addition of new facts and has viewed that: