SANKAR KUMAR DAS Vs. BASUDEV GUCHAIT

JUDGEMENT

(1.) THE suit filed by the plaintiff for recovery of khas possession, damage and mesne profit was dismissed on contest by the judgment and order dated 17th February, 2005. The plaintiff alleged that the defendant was defaulter in payment of rent since 1984 and violated clauses (m),(o) and (p) of Section 108 of the Transfer of Property Act by installing a very big printing machine without the consent of the plaintiff.

(2.) THE learned trial Judge upon evidence and contested hearing dismissed the suit by recording a finding that it is an admitted position that the suit premises was let out to the defendant for the purpose of running a printing press. The eviction on the ground of default also did not succeed.

(3.) THIS Court agreed with the view expressed by the appellate Court in holding that no court should entertain an amendment of the original pleading at the appellate stage in order to make judgment and decree of the learned trial Court otiose. Even if one accepts for the sake of argument that a heavy printing machine was installed, the plaintiff has already prayed for eviction on the basis of violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and having failed to obtain a decree, the introduction of lithograph printing machine is only an attempt to have a fresh trial on the issues which have already been decided on the basis of the evidence. In fact the purpose of amendment is to reopen the entire matter.