BHOLA NATH Vs. MOHAMMAD IBRAHIM

JUDGEMENT

(1.) THE appellant in the present Second Appeal has moved two applications : one under Order 6 Rule 17 CPC for the amendment of the written statement and the other under Order 41 Rule 27 for admitting two documents as additional evidence in this case. By means of this order these two applications are being disposed of.

(2.) THE present Second Appeal arises out of a suit for ejectment, recovery of arrears of rent and damages for use and occupation filed by respondents on the allegations that they are owners of the shop in suit of which the appellant is tenant at the rate of Rs. 22.50 paise per month. THE defendant has not paid the rent since 1st January, 1965. THE suit was filed mainly on two grounds namely (1) on the ground of default in payment of rent and (2) on material alterations. THE appellant contested the suit on the grounds that the tenancy is annually and not monthly and that the rent is Rs. 270/- per annum. In fact, for some time the plaintiffs used to take clothes etc. and on account of that, adjustment in the rent was done. In August, 1967 defendant fell ill seriously and has been taken out for treatment to Allahabad and he remained out of station till 1968 and the shop in suit remained closed. It was further pleaded that no notice was received or refused by him. He also denied the material alterations as alleged in the plaint.

(3.) THE main thrust of argument by Sri Rajeshwari Prasad, learned counsel for the plaintiff-respondents against the proposed amendment was that by it appellant was denying the title of the lessor (respondent) which in view of Section 116 of the Indian Evidence Act is not permissible. He urged a tenant under it is estopped from challenging the title of the lessor from whom he was inducted in possession and thus he should not be permitted to raise such plea by means of an amendment. It was also urged that since the appellant and his predecessors were inducted in tenancy initially by the predecessors of the respondents even before the alleged Waqf was created and even subsequently on account of fresh rent deed being executed on 3rd July, 1960 (Ext. 56) between the respondent and the appellant, he cannot be permitted to deny his title.