TARA SINGH Vs. NARANJAN SINGH

JUDGEMENT

(1.) This appeal is directed against the order of the Additional District Judge, Kurukshetra, dated 9th January, 1986, whereby the amendment to the written statement has been allowed and at the same time the decree of the trial Court passed in favour of the plaintiff has been set aside.

(2.) The plaintiffs filed the suit for possession of the agricultural land. It was decreed by the trial Court vide judgment and decree dated 15th June, 1983. Dissatisfied with the same, the defendants filed the appeal. Along with the said appeal, they also moved the application for the grant of the permission to amend the written statement. It was alleged therein that there was no subsisting mortgage and if there was any, the same was redeemed. This plea, though taken in the written statement was not specifically pleaded; hence the prayer for the grant of the permission to amend the written statement. The application was contested on behalf of the plaintiffs. However, the learned Additional District Judge found that the plea sought to be taken by way of the amendment was already there in the written statement. The plea now sought to be taken was that the mortgage debt was repaid and that the mortgage was got redeemed was only by way of clarification. In this view of the matter, the prayer for amendment of the written statement was allowed on payment of costs of Rs. 400/-. The judgment and decree of the trial Court were set aside and the case was remanded to the trial Court for deciding the same fresh in accordance with law.

(3.) The learned counsel for the appellant contended that there was no occasion for the lower appellate Court to allow amendment of the written statement at the appellate stage if the plea sought to be raised was already there as claimed by the defendants. Then, the only question was of producing the evidence to that effect. Thus, argued the learned counsel, the question of amendment of the written statement at the appellate stage did not arise. At the most, the defendant could ask for permission to adduce additional evidence to prove the redemption of the mortgage in dispute. The learned counsel also contended that there was no occasion for the lower appellate Court to set aside the judgment and decree of the trial Court after allowing the amendment to the written statement as prayed by the defendants.