Chet Ram Thakur, J.
1. This application under Order 6, R. 17 read with Section 151 of the Civil Procedure Code (shortly called the Code) has been filed by the appellant for amendment of the written statement.
2. One Bhuria had two sons, Mansha Ram and Mohru. The latter had one son Ganeshu and a daughter Smt. Niki, the plaintiff-respondent. The former had one son Mathu. On the death of Ganeshu, his widow succeeded him, who is said to have made a will of her property on 26-9-1965 in favour of Mathu. She died in July, 1966, and the will is stated to have been registered on 21-8-1966. Mutation on the basis of the will in favour of Mathu was attested on 27-6-67. Smt. Niki filed a suit for cancellation of the will on the ground that the will was forged and that she was the only legal heir to succeed to the property of Smt Sewati who was her brother's widow.
The suit was dismissed on 22-8-1973. She filed an appeal before the District Judge. During the pendency of the appeal, Mathu died without issues and a wife. The present appellant-petitioner was brought on the record as the legal representative because he was an inter-meddler. The District Judge accepted the appeal of Smt. Niki on 26-2-1976. Muni Lal, therefore, filed the present appeal on 1-4-1976, and, on April 2, 1976 he obtained an order that he shall not be dispossessed from the land. On 5-8-1976 the stay order was confirmed and it was ordered that the case shall be listed for early hearing. Thereafter the appellant filed this C. M. P. No. 1676/1976 on 22-9-1976 for amendment of the written statement, whereby he wanted to insert two pleas in the written statement which are as under:
(1) That the appellant being the tenant of the land in dispute under the previous owners from whom the plaintiff is deriving her title and also under Mathu and Sewati, the suit for possession is not triable by the Hon'ble Court and the appellant cannot be dispossessed from the land in dispute except in accordance with the provisions of the Himachal Pra-desh Tenancy and Land Reforms Act.
(2) That the respondent having not reserved the area in dispute in accordance with law before the appointed day, he has become the owner of the land automatically in accordance with the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, as amended, Hence also the suit merits dismissal.
2-A. It had been averred that these pleas had arisen to the appellant after the filing of the written statement and could not be legally taken earlier. The allowing of the said pleas is essential for determining the real controversy between the parties. It would shorten the litigation and will not change the nature of the case or the defence and that the plaintiff would not be prejudiced in any manner either,
3. This application is opposed by the respondent on the ground that the applicant-legal representative cannot make out a new and a personal case and he has to contest the case only on the basis of the written statement filed by Mathu. The application is based on mala fides. During the pendency of the appeal in the lower appellate court, Muni Lal contested the appeal on the same pleadings filed by Mathu without any objection and after the acceptance of the appeal by the learned lower appellate court, Muni Lal while filing the present Regular Second Appeal did not contend for filing the amended written statement. The application has been filed with an ulterior motive to delay the disposal of the appeal,
3-A. I have heard the counsel for the parties. The counsel for the petitioner submits that amendment to the written statement can be permitted at any stage and that delay is no ground for disallowing an application for amendment. There can be no denying the fact that an amendment can be permitted even at the appellate stage provided the amendment does not raise any inconsistent plea or a different cause of action. The learned counsel has cited a large number of case law on the point.
4. The first authority is Pathikonda Gopala Rao v. Nagiri Pedda Kitamma (AIR 1955 Andhra 138). It lays down:
'Courts of law should bear in mind the sacred duty of doing justice between the parties in accordance with the provisions of the Code of Civil Procedure. They do not exist for the purpose of punishing the parties. Rules of procedure are not framed to defeat justice. When the other party can be compensated by way of costs or other proper terms, the amendment ought not to be refused on the sole ground of delay or negligence.'
It was a money suit brought by the plaintiff. An application for amendment was filed to permit him to sue as the manager of the joint family consisting of himself and his brother and also to implead his brother as the second plaintiff. This application was opposed by the defendant on the ground that by permitting the plaintiff to sue as the joint family manager, he will lose valuable plea of limitation. The District Munsif upheld the objection of the defendant and dismissed the amendment application and a revision petition was filed which was allowed. The ground taken by the defendant to oppose the application was that it was belated and that the valuable plea of limitation would be lost and it was in these circumstances that this principle was laid down.
5. The second authority is M.K. Krishna Rao v. Sri Gangadeswarar Temple and other connected temples by trustees (AIR 1049 Mad 433} and it also lays down that where the suit has not begun to be heard but there are laches on the part of the defendant, the amendment sought for by the defendant in his written statement ought to be allowed on condition of the payment of costs to compensate the plaintiff for the waste of time, money and energy caused by the defendant's laches.
6. Yeshwantrao Sabnis v. Bhalchandrarao (AIR 1952 Madh Bha 207) lays down:
'A legal representative must continue the litigation on the cause of action sued upon and cannot set up a new and individual right. He can take up any plea which may be appropriate to his character as legal representative. But he cannot take up a new and inconsistent plea or a plea contrary to the one taken by the deceased. Nor can he take any plea which was not open to the deceased defendant himself.
If the legal representatives want to raise any new point which deceased could not have raised they must get themselves impleaded in their personal capacity or they must challenge the decree in a separate suit.'
This authority as a matter of fact does not support the contention raised by the learned counsel for the petitioner, rather it helps the respondent, whose case is that the defence taken by Mathu was that Smt. Sewati had executed a will in his favour while she was of a disposing mind and that it was on the basis of that will that he had succeeded to the property and was entitled to continue as owner in possession but Mathu died during the pendency of the appeal filed by Smt. Niki and the present applicant who was said to be intermeddling with the estate was impleaded as a legal representative of Mathu and his contention was that Mathu had executed a will in his favour and that is why he was intermeddling with the estate. Therefore, in these circumstances this plea of tenancy which could not be taken up by Mathu also cannot be permitted to be raised by the present petitioner and this authority is quite in accord with the submission made by the learned counsel for the respondent.
7. Mt. Moti Bala Debi v. Satyanand Tirtha Swami (AIR 1930 All 348) is also distinguishable, inasmuch as it was a suit on the basis of the mortgage and a preliminary decree had been passed when the defendant in the case died and his legal representative was impleaded and, therefore, it was held:
'While under ordinary circumstances the provisions of Order 34, Rule 5, being imperative in their character should be followed, but taking them with the provisions of Order 22, Rule 4 (2), a legal representative is at liberty to take any defence which may be appropriate to his character as the legal representative of the deceased defendant'
The legal representative in the case had taken the plea that the property which had been mortgaged by his predecessor-in-interest and to which the preliminary decree related was endowed property appertaining to the mutt of which the legal representative was the new Mahant in succession. It was pleaded that the mortgage not being for legal necessity was not binding on the mutt and on the respondent. He also denied that he was the legal representative,
The Court in view of those circumstances held that 'if the attempt to treat the respondent as the legal representative of the deceased fails, it is obvious that no final decree can be passed. The respondent could be treated as the legal representative of the deceased if the mortgaged property is part of the endowed property which was in the management of the deceased, who had been succeeded in that management by the respondent. Under Order 22, Rule 4 (2), Civil P. C., a person against whom an application is made for substitution can, if brought on the record, make any defence appropriate to his character as the legal representative of the deceased defendant. If, therefore, the respondent be treated as the legal representative of the deceased, it is open to him to contest the plaintiff's claim to o'btain a final decree on the ground that the mortgage deed executed by his predecessor-in-interest was invalid and that & final decree should now be refused.' But, the facts of this case are quite distinguishable from the facts of the case in hand. The defence now sought to be set up by the petitioner, Muni Lal is that he is a tenant of the land and that he cannot be dispossessed whereas this plea was not available to Mathu who had got the property under the will.
8. The next authority is Nrisingh Prosad Paul v. Steel Products Ltd. (AIR 1953 Cal 15). According to this authority the 'real controversy' test is the basic test which governs the Court's unchartered powers of amendment of pleadings. No amendment should be allowed when the amendment does not satisfy this cardinal test. But this authority further says: 'But nevertheless no amendment of a defence or written statement should be allowed which is not answer to the plaint and the cause of action pleaded therein, An immaterial and useless amendment should not be permitted by the Court Nor does the Court allow amendment by introduction in the written statement of a stale and untenable set-off. These con-elusions follow naturally from the 'real controversy' rule in Order 6, Rule 17. The governing consideration in en application to amend the written statement should be how far, if at all the proposed amendment of the defence is necessary to determine the 'real controversy' between, the parties. If that test is not satisfied then the amendment should not be allowed, even on the ground that there can be no real prejudice by the amendment and that the costs awarded against the amending party will act as the panacea for any possible inconvenience occasioned by the amendment.'
The learned counsel for the appellant-petitioner submits on the basis of this authority that the 'reel controversy' test is satisfied, inasmuch as the present appellant is in possession of the property as a tenant not only under Mathu but even from the time of his predecessor-in-interest from whom he got the property under the will. That is true that he may be a tenant but the fact remains that the legal representative cannot introduce altogether a new case, he has to meet the pleas raised in the plaint and the proposed defence was not open to Mathu and the present applicant could end should have applied for impleading him as a party in his own right when the suit was pending. He cannot avail of this 'real controversy' test in order to put up this defence of tenancy when the plea of Mathu was that he had got the property under a will from Smt. Sewati which was alleged to be a fake and a forged one.
9. On the contrary, it has been held in Sadhu Singh v. Firm Kahan Singh-Soman Singh (AIR 1944 Lah 473) that defence not open to the defendant if alive cannot be raised by his legal representative in that character, and exactly in the instant case if Mathu had not died he could not set up this plea of tenancy.
10. In Ram Ugrah Ojha v. Ganesh Singh (AIR 1940 All 99) (FB) a Full Bench of the Allahabad High Court held:
'Hence, where after passing a preliminary decree the mortgagor dies and his heirs are substituted as his legal re-presentatives, their objection that the mortgage being without legal necessity was not binding on them cannot be raised in the proceedings for the preparation of final decree. The objection raised by the legal representatives to the preparation of the final decree is not open to them as legal representatives of the deceased. They are raising such objection in their personal capacity. The personal rightc of the objectors and whatever remedy they may have in exercise thereof are not affected by the final decree.'
11. In Surendra Narain Sarbadhikari V. Bholanath Roy Chowdhury (AIR 1943 Cal 613) also it has been laid dawn:
'The legal representative of the deceased-defendant is bound to adopt the written statement of the latter and cannot at the appellate stage raise a new case, a case inconsistent with the case of the deceased as made in his written statement.'
This authority fully applies to the instant case.
12. In Vedachala Chettiar v. Ameena Bi Ammal (AIR 1944 Mad 121) (FB) a Full Bench of the Madras High Court held:
'It is far too late at the close of the plaintiff's case to allow the defendant to set up a new case by amendment of an issue framed in the suit. Nor will the High Court allow the amendment in second appeal when it would mean the remanding of the case for taking of further evidence.'
In the case before this Court the applicant did not raise this plea before the District Judge when he was impleaded as the legal representative of Mathu nor he filed any application at the earliest stage, rather he first got an ad interim stay not to dispossess, him and later when the stay order was confirmed then he came up with this application for amendment so as to seek amendment by inserting a plea that he was a tenant of the land and that this Court or a civil court has no jurisdiction to try the suit and further the plaintiff did not reserve this portion of the land as contemplated under the Himachal Pradesh Tenancy and Land Reforms Act and as such he has become the owner thereof. So, these are the pleas which are quite inconsistent to the pleas taken up by Mathu nor Mathu could have taken up this plea while defending the suit brought by Smt. Niki for the cancellation of the will. Therefore, this application is a mala fide one brought with an ulterior motive to prolong the litigation.
13. According to Beni Pershad Bhargava v. Narayan Glass Works, Makhanpur (AIR 1949 Ajmer 19) also the 'questions in controversy between the parties'within the meaning of Order 6, Rule 17 aresuch questions which are in controversybetween the parties at the time whenthey join issue, i. e. when the defendantputs in his written statement. They donot include any questions which the parties neither wish nor intend to disputetill that stage.
14. In Ram Singh v. Jethanand Wadhumal and Co. (AIR 1964 Raj 232) where the plaintiff both in trial court and the first appellate court mainly contended that contract was not a forward contract and did not rely on Government notification exempting such contract it was held that the plaintiff cannot be permitted in second appeal to amend tine plaint and lead evidence to bring his case within the exemption. Similarly, in Srish Chandra Chatterjee v. Golap Moni Dasi (AIR 1921 Cal 125) a Division Bench held that amendment of plaint in appeal necessitating fresh evidence to be taken and de novo trial should not be allowed.
In Kizhiakakithil Puthan Veetil Thacazhi Karnavan v. Manikat Variath Ukkali Varissiar's son Sankunni (AIR 1935 Mad 52) also it has been laid down that a party who comes into the suit as the legal representative of another party cannot be allowed to depart from or vary or contradict the attitude taken up by the party whose legal representative he is; it is obvious that if he were permitted to do so it would be impossible to conduct any litigation where legal representatives come in.
15. From these authorities it is abundantly clear that in a case like the one where this plea of tenancy was not available to Mathu, the present petitioner cannot be permitted to take up this 'plea and it was open for him to have applied for impleading him as a party and if he failed to do that he could file a regular suit. But, this plea of tenancy, therefore, is not only not available but is also made with an ulterior motive at this late stage. Therefore, this application cannot be allowed and is hereby dismissed.