JUDGMENT R.H. Zaidi, J.
1. Heard the learned counsel for the parties and perused the record. Since counter and rejoinder-affidavits have already been filed by the parties in this case, as desired by the learned counsel for the parties, the case was heard and is being disposed of finally at this stage.
2. By means of this petition, under Article 226 of the Constitution, the petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 29-11.1996 passed by the Vth Additional District Judge, Faizabad allowing the amendment of written statement at appellate stage.
3. It appears that original suit No. 97 of 1986 was filed by the petitioner for specific performance of contract of sale dated 26.6.74 alleged to have been executed by Kamla Singh, the predecessor in interest of the defendants-respondents. It was pleaded that agreement of sale was executed by Sri Kamla Singh for selling the land in dispute in favour of the petitioner for an amount of Rs. 20,000 out of which an amount of Rs. 10,000 was paid at the time of execution of the agreement. Meanwhile, Kamla Singh died in September, 1981. The property in dispute came in the hands of the defendants-respondents. Smt. Ram Piarey widow of Kamla Singh instead of executing the sale deed in favour of the petitioner sold the land in question to one Sri Prakash Singh. her son-in-law, on 9.7.85. The petitioner by means of notice dated 2.3.86 called upon the defendants-respondents to execute the sale deed in his favour, but they have refused to execute the sale deed. He, therefore, filed the suit for abovementtoned relief. Suit was contested by the defendants-respondents, who have denied the claim of the petitioner. Parties produced evidence in support of their cases. The trial court recorded findings on all relevant issues in favour of the petitioner and decreed the suit by judgment and decree dated 20.10.1989. Aggrieved by the judgment and decree passed by the trial court, respondent Nos. 2 to 4 filed Civil Appeal No. 160 of 1989. During pendency of appeal, respondent Nos. 2 to 4 filed an application dated 4/8.9.1995 for amendment of the written statement. The application filed by the said respondents was objected to and opposed by the petitioner, who has pleaded that the application was apparently mala fide and the amendment sought was highly belated and was not necessary for determining the real question in controversy between the parties and that the amendment by introducing a factual plea requiring proof could not be permitted at the above stage. The appellate court, however, allowed the amendment application and permitted the written statement to be amended by introducing the plea that respondent Nos. 3 and 4 were bona fide purchasers for value of the land in dispute without notice.
4. Learned counsel for the petitioner vehemently urged that the order passed by the Court below allowing amendment at the appellate stage was wholly illegal and against the provisions of Order VI. Rule 17, C.P.C. It was urged that the amendment of the written statement by which a factual controversy was sought to be introduced, which required proof, could not be allowed at appellate stage and further that the amendment sought by the contesting respondents was not necessary for determining the real question in controversy ; the Court below has thus acted illegally in allowing the amendment. The order of the Court below is, therefore, liable to be quashed. On the other hand by the learned counsel for defendents-respondents, it was submitted that the amendment of the pleadings could be allowed at any stage of the proceedings, and that the same could not be refused on the ground of delay and the Court below, therefore, committed no error of law and jurisdiction in allowing the application for amendment.
5. I have considered the rival submissions made by the learned counsel for the parties and thoroughly perused the record. Admittedly, the suit was filed in the year 1986. In the written statement filed on behalf of the respondent Nos. 3 and 4, the plea that they were bona fide purchasers without notice of the agreement in question was not taken by them, therefore, there was no question of producing evidence on the said aspect of the matter. The suit was ultimately decreed on 20.10.1989 and in the same year Civil Appeal No. 162 of 1989 was filed. Even in the memo of appeal, the said plea was not taken and it was after expiry of about nine years from the institution of the suit and for about six years from the date of filing of the appeal that the amendment application for amending the written statement to introduce factual plea was made.
Rule 17 of Order VI, C.P.C. provides as under:
"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."
6. From a reading of the aforesaid Rule, it is evident that amendment of the pleadings can be allowed at any stage of the proceedings provided the same is necessary for determining the real question in controversy between the parties.
7. The Court below did not apply its mind to the question as to whether the amendment sought in the written statement was necessary for purposes of determining the real question in controversy between the parties or not. The appellate court simply held that amendment could be allowed at any stage of the proceedings and the amendment sought in the present case did not change the nature of the suit. It was also observed that the amendment was not sought for delaying the disposal of the appeal. The plea that the respondent Nos. 3 and 4 were bona fide purchasers for value without notice of the agreement in question is a plea of fact. Since the said plea was-not taken in the trial court, there arose no question of framing an issue on this aspect of the matter. None of the parties produced evidence in respect of the said plea, therefore, if amendment in the written statement is permitted, the defendants-respondents will be entitled to lead evidence in support of the said plea. Naturally, the petitioner will also have to amend the plaint and to lead evidence to negative the claim of the defendants-respondents. The evidence may be recorded by the appellate court or for the said purpose, the case may be remanded to the trial court. In any view of the matter, the disposal of the appeal is bound to be delayed. The view taken to the contrary by the appellate court that the amendment application was not filed for delaying the disposal of the appeal, in view of the aforesaid facts, is apparently erroneous and incorrect.
8. Learned counsel appearing for the contesting respondents referred to and relied upon certain decisions of the Apex Court. Reference in this regard may be made to Ishwardas v. State of Madhya Pradesh and others. AIR 1979 SC 551, wherein it was ruled as under:
"There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the well-known 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. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."
In the said decision, it was ruled by the Apex Court of the country that before amendment is granted at appellate stage, the appellate court should apply its mind to the question of delay in making the amendment application, and should see as to why the amendment was not sought in the trial court. In the present case, neither any reason for not taking the plea in the trial court was disclosed in the amendment application nor the Court below has applied its mind to this aspect of the matter.
9. Reliance was placed upon the decision of Haridas Aildas Thadani and others v. Godrej Rustom Kermani, AIR 1983 SC 319. wherein it was ruled by the Supreme Court as under:
The Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.
That the District Judge had exercised a sound discretion in allowing the amendment of the plaint to insert a relief for recovery of possession, as by allowing such amendment neither the nature of the suit could be altered nor any valuable right of limitation accrued to the defendant could be taken away. The High Court, therefore, was clearly wrong in interfering in revision by reversing the discretionary order of the District Judge."
The aforesaid case has got no application to the facts of the present case. As tn the present case, not the relief but new plea involving factual controversy was sought to be introduced after about nine years of the institution of the suit with a view to defeat the right of the petitioner, which has accrued to him by passage of time and under the Judgment and decree passed by the trial court.
10. In view of the aforesaid decisions and in view of the fact that the Court below did not apply its mind to the question as to whether the amendment sought was necessary for determining the real question in controversy or not between the parties, the Judgment and order passed by the Court below is liable to be set aside.
11. In the result, the writ petition succeeds and is allowed. The impugned order dated 29.11.1996 passed by the Vth Additional District Judge, Faizabad is quashed. No order as to costs. Interim order, if any, is discharged.