BAIDYANATH DEY Vs. PRAFULLA KUMAR BOSE

JUDGEMENT

(1.) This rule is directed against the order dated March 18, 1977 passed by the learned Additional district Judge rejecting an application filed by the defendant-appellant for amendment of written statement in a pending appeal. It appears that the plaintiff respondent filed a suit for recovery of possession of the suit premises on the ground of reasonable requirement for his own occupation. The plaintiff claimed to be the owner of the suit premises though in the plaint he did not disclose the devolution of his title and in his written the plaintiff was the owner of the suit premises. The learned Munsifff on a trial on evidence decreed the suit and an appeal was preferred by the defendant against the decree. As this appeal was pending before the learned Judge the application for amendment was filed in the appeal on December 3, 1976.

(2.) The application for amendment sought to be in place of paragraph 7 of the written statement is as follows :-

(3.) The learned Judge in dealing with the petition referred to the delay made in filing the petition for amendment and noted the defendant's case in respect thereof that he was not very much educated and had no knowledge of the Deed of Settlement which was the basis of the plaintiff's title, nor was he competent to make the construction of the document which was not available to him or his lawyer at the time of filing the written statement. The defendant after the decree took inspection of the document and was surprised to find that there was nothing in the said document to identify the suit property with the property that was settled in favour of the plaintiff's mother and the plaintiff. Further the defendant had come to learn on enquiry that there was no material on record to prove the plaintiff's ownership and the original Deed of Settlement, which was the document of title, did not indicate that the property belonged to the plaintiff. The admission in the written statement was made through error without the defendant being aware of the real state of things, and in view of the erroneous admission no issue on the point of owner ship could be framed nor was any evidence adduced by him. The defendant submitted that he was carrying on business in the suit premises for his livelihood and unless the written statement and allowed to be amended he would suffer irreparable loss and injury.