DEVKINANDAN Vs. NAWAL SINGH

JUDGEMENT

(1.) PETITIONERS/defendants No. 1 to 4, aggrieved against the order of the first appellate Court allowing amendment of the plaint, setting aside the judgment and decree of the trial Judge and remanding the case to it for de novo trial of the suit, have moved this Court in second appeal.

(2.) PLAINTIFF respondent No. 1 filed a suit for possession of the suit property and for recovery of arrears of rent amounting to Rs. 526/ -. The trial Judge dismissed the suit for possession but decreed the same for recovery of arears of rent amounting to Rs. 526/ -. Aggrieved against the judgment and decree of the trial Judge, the plaintiff respondent assailed the same in the first appellate Court. During the pendency of the appeal, he moved an application under Order 6, Rule 37, Civil Procedure Code, for taking the plea in the plaint that the earlier ejectment application filed by him against the tenant/predecessor-in interest of the defendant-respondents a plea had been taken by him that the plaintiff-respondent was not the landlord of the property in dispute and the denial amounted to repudiation of the title of the plaintiff and as such he was entitled to file a suit for possession against the respondents. The application was opposed by the defendant-respondents. The first appellate Court allowed the application under Order 6, Rule 17, Civil Procedure Code, and after so doing passed the following order :

(3.) THE course adopted by the first appellate Court is not warranted at low After allowing the amendment, it should have permitted the parties to lead evidence in proof or disproof of that plea or it should have asked the trial Court to send a report with regard to that plea after permitting the parties to lead evidence In the circumstances of the instant case, it would have been desirable if the first appellate Court had allowed the parties to lead further evidence before it and thereafter proceeded to dispose of the appeal on merits.