1. The plaintiffs-petitioners filed the suit for possession in respect of the shop situated within the municipal limits of Gurgaon, on the allegations that it was originally let out in favour of Uttam chand on a monthly rent of Rs. 35/- vide rent note dated July 15, 1981 his sons Kesar Das and to others, defendants, had been in illegal and forcible possession thereof. The plea taken in the written statement was that the tenancy was in favour of the joint Hindu family firm styled as M/s. Uttam Chand Kesar Das and that the rent note was executed by Uttam Chand in his capacity as the manager and the Karta thereof. The trial Court negatived the plea of the defendants and consequently, decreed the plaintiffs suit vide judgment and decree dated April 28, 1984. Dissatisfied with the same, the defendants filed the appeal on May 11, 1984. During the pendency of the appeal, the defendants moved the application dated September 12, 1984, whereby they sought the amendment of the written statement. The amendment sought was that after the execution of the rent note a new agreement of tenancy had come into existence by novation of the contract as the rent came to be increased and that after the death of their father who was a contractual tenant; rent being payable from month to month; they had acquired the status of a tenant as the contractual tenancy was heritable. The said application was opposed on behalf of the plaintiffs. However, the learned Additional District Judge. Gurgaon, came to the conclusion that the defendants had not sought to raise any inconsistent plea and, therefore, there was no question of any prejudice being caused to the plaintiffs. According to the learned Additional District Judge, the defendants clearly asserted that they could not raise the plea before the trial Court due to inadvertence as they were not educated and well conversant with law. Consequently, the application for amendment of the written statement was allowed Dissatisfied with the same, the plaintiffs have filed this revision petition in this Court.
2. The learned counsel for the petitioners, contended that the plea sought to be taken by way of the proposed amendment in the written statement was contradictory to the plea already taken by the defendants earlier in the written statement. In any case, argued the learned counsel, there was no cogent explanation in the application why the plea raised in appeal could not be taken in the trial Court. The very fact that the application was filed during the pendency of the appeal proves that the same was not bona fide and was filed with an ulterior motive to delay the proceedings. In support of the contention, the learned counsel relied upon Ranjit Kaur v. Ajaib Singh. 1984 Rev LR 348: (AIR 1984 Punj & Har 292). On the other hand, the learned counsel for the defendants submitted that even if the order allowing the proposed amendment of the written statement was wrong, the same could not be interfered with in the revisional jurisdiction It was also submitted that the delay in filing the application itself was no ground for not allowing the amendment. Besides, argued the learned counsel, the proposed plea was not contradictory and in any case, it being necessary for determining the real controversy between the parties, the same has been rightly allowed by the lower appellate Court. In support of the contention, the learned counsel relied upon Ragubir Prashad v. Chet Ram, 1971 Cur LJ 612 (Punj & Har): Bikram Dass v. Nirmal Singh, (1981) 2 Rent LR 101 (Punj & Har) and Ishwardas v. State of Madh Pra, AIR 1979 SC 551.
3. I have heard the learned counsel for the parties and have also gone through the case law cited at the bar.
4. Of course, there is no prohibition against an appellate Court permitting amendment of the pleadings at the appellate stage as observed by the Supreme Court in Ishwardas's case (supra). At the same time, it has also been observed therein that all that is necessary is that the appellate Court should observed the well know principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. In the case in hand, the only reason given by the defendants in their application for seeking amendment of the written statement was that it was by inadvertence and because they were not educated and well conversant with law that the proposed plea could not be taken earlier. If this sweeping plea is allowed, then practically in every case, the question of explaining the delay in seeking the proposed amendment will become redundant. In my considered opinion a party seeking amendment of the pleadings is required to give cogent reasons than mere inadvertence for not taking the said plea earlier. Since the jurisdiction of the appellate Court is further limited because after the passing of a decree the rights of the parties come into being a very strong case is to be made out why the plea sought to be taken now could not be taken earlier. In the present case, no such cogent explanation has been given. The approach of the lower appellate Court in this behalf is wrong, illegal and misconceived causing failure of justice. The plea taken by the defendants earlier in the trial Court was that it was the joint Hindu family firm which was the tenant. After having lost in the trial Court on the said plea, now they wanted to take a new plea that Uttam chand was a contractual tenant on the demised premises. This plea was very much available to them earlier. Having lost in the trial Court, they could not be allowed to take this contradictory plea in appeal. In any case, no case was made out by the defendants for seeking amendment of the written statement at the late stage. As observed earlier, the approach of the lower appellate Court in this behalf was wrong and illegal, and it has thus acted illegally and with material irregularity in the exercise of its jurisdiction.
5. Consequently, this revision petition succeeds and is allowed. The impugned order is set aside. It is directed that the appeal be disposed of on merits in accordance with law. The parties have been directed to appear in the Court of the Additional district Judges, Gurgaon, on May 30, 1985.
6. Revision allowed.