SHYAM SINGH Vs. HIRA SINGH

JUDGEMENT

(1.) This is a defendants' appeal arising out of a suit for possession by redemption.

(2.) Sohanu filed a suit alleging that he executed mortgage with possession in 1943 in favour of Hiru for Rupees 300/- and thereafter executed another mortgage in 1944 in favour of the same mortgagee for Rs. 800/-, that the amount had been realised by the mortgagee from the land and that therefore he was en- titled to redeem the properties. The suit was contested by the defendant, Shyam Singh, on the ground that he was a tenant in possession from Hiru and was not liable to be ejected. The trial court held that the mortgages had not been proved, that Shyam Singh was not a tenant of the plaintiff but a mere trespasser, and it decreed the suit on the basis of the plaintiff's title. Shyam Singh appealed to the learned District Judge, and the appeal was allowed and the case remanded to the trial court on the finding that the suit had not been brought on the basis of title, that in fact the land had been mortgaged and that, therefore, the related issues which had not been decided by the trial court should now be decided. Shyam Singh appealed to the learned Judicial Commissioner against the remand order, and on May 31. 1965, the learned Judicial Commissioner allowed the appeal on the basis of a compromise between the parties under which the remand order was set aside and the lower appellate court was directed to dispose of the appeal afresh both on the basis of title and on the basis of the claim to redeem the mortgages. During the pendency of the appeal before the learned District Judge, the plaintiff died in 1966 and his legal representatives were brought on the record on January 21, 1969. Then, on May 16, 1969 Shyam Singh applied for permission to amend his written statement by including the plea that he was a tenant under the mortgagee, who had let out the land as an act of prudent management, and that therefore his tenancy was binding on the plaintiff. On August 16, 1969, the learned District Judge rejected the amendment application and simultaneously dismissed the appeal on its merits finding that as the mortgagee had derived benefit from the land to the extent of Rs. 13,078.93 the plaintiff was entitled to a decree for possession by redemption. Shyam Singh now appeals to this Court.

(3.) Learned counsel for the appellant contends that the lower appellate court erred in rejecting the amendment application. The contention cannot be accepted. The lower appellate court refused permission to amend on the ground that the amendment application was grossly belated and that it had been made mala fide. Learned counsel has attempted to show that the amendment application could not have been made before May 1969. It seems to me that at least after the order of the learned Judicial Commissioner in May 1965 that the case should be decided on the basis of the mortgages as well as of title, the appellant could have sought an amendment of the written statement. The amendment application could have been moved on any date between May 31, 1965 and August 31, 1966 when the plaintiff Sohanu died. No such attempt was made, and it appears that it was only after the substitution of the legal representatives of the deceased plaintiff on . January 21, 1969 that the amendment, was sought by the appellant. It is worthy of notice that even after the substitution of the legal representatives the amendment application was not moved for about four months. It is difficult to hold that the decision of the lower appellate court to refuse amendment is erroneous.