JUDGMENT Poonam Srivastava, J.
1. Heard learned Counsel for the appellant and Sri J. N. Mishra, advocate, for the caveator-respondents.
2. This is defendants second appeal. A suit was decreed and the appeal filed by the defendants stands dismissed. The substantial questions of law argued in this appeal are:
(1) Whether an amendment application and additional evidence can be allowed at appellate stage to fill up lacuna or gaps in evidence against the provisions of Order VI, Rule 17 and Order XLI, Rule 27, C.P.C.?
(2) Whether the appellate court, on framing an issue, should have and not referred the case to trial court in compliance of Order XLI, Rule 25, C.P.C.?
(3) Whether the decision by appellate court on issue which was not an issue before trial court is not violative of established procedure for civil trial and principles of justice and fair play?
The plaintiff-respondent instituted a suit against the defendant No. 2 for sanctioning the map. Alternative relief claimed was for recovery of Rs. 19,000 and interest @ 24% annual interest. The plaintiff claimed himself to be a co-bhumidhar with transferable rights in possession of the disputed plot No. 1750/2 having an area of one bigha, two biswa and 14 biswansi. The defendant No. 1 had sold a part of the plot in question for a consideration of Rs. 19,000 on 30.10.1996 by means of a registered sale deed and also put him in possession. The plaintiff wanted to construct a house on the said plot and she had completed all the formalities but the employees of the Development Authority did not permit her to make the constructions on 12.12.1996 and also refused to sanction the map. The suit was instituted against Banda Development Authority through its Secretary. Subsequently an amendment application was moved on 5.9.2003 and paragraph 5A was added alleging that since the plaintiff has not been able to make constructions for the reason that the development authority raised their objection that the area is earmarked for a park. The defendant No. 1 has cheated the plaintiff. After the amendment in appeal, an additional issue was framed, "whether the disputed land was reserved for park, if yes then its effect?" The appellant has emphatically pressed the aforesaid question of law whereby he has stated that the amendment could not have been allowed in the appeal with a view to fill up the lacuna or gaps and also that in the event, a fresh issue was framed in view of the provisions of Order XLI, Rule 25, C.P.C., the case should have been remanded to the trial court for afresh decision.
3. I have examined the impugned judgments. It is settled principle of law that the amendment can be brought at any stage. Admittedly, the suit was instituted in the year 1996 much before the Amended Civil Procedure Code came into existence. Besides, it is also noteworthy that the application for amendment was moved on 1.8.2003 which was allowed and a fresh issue was framed on 10.10.2003 but the defendant submitted to the amendment and did not raise any objection at that stage. In the circumstances, the order passed in the amendment application allowing the same attained finality. The written statement was filed by Banda Development Authority and it was pleaded that the land in question has been left for construction of a park and therefore, in view of the record No. 64/86 and also the provisions of U.P. Urban Planning and Development Act, 1973 as well as the Building Byelaws, the map for construction could not be sanctioned. The park will be for general use of the public. The trial court had framed issue No. 1 specifically on the question as to whether the plaintiff is entitled to the relief claimed in the plaint and issue Nos. 1 and 2 were decided together. Issue No. 1 was decided against the plaintiff holding that the map cannot be sanctioned on account of the aforesaid prohibitions and restrictions but issue No. 2 was decided in favour of the plaintiff holding that the plaintiff is entitled for recovery of Rs. 19,000 and interest at the rate of Rs. 12%.
4. Reliance has been placed by the counsel for the appellant in the cases of Sushil Kumar v. 10th Additional District Judge, Bareilly and Ors. (1996) 2 CRC 1141; J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr. 2002 (47) ALR 230 and N. Kamalam and Anr. v. Ayyasamy and Anr. 2002 ACJ 266. On the basis of the aforesaid decisions, it is argued that no fresh evidence is ordinarily allowed at the appellate stage and definitely not to patch up the weak points. In the instant case, admittedly, no additional evidence has been adduced and the Court has only framed an additional issue. In fact the trial court had already recorded a finding on the basis of the pleadings of the development authority to the effect that since the land in question was earmarked for the park then the plaintiff was not entitled for sanctioning his map. It is, therefore, clear that prejudice has been caused to the merits of the instant case. So far the provisions of Order XLI, Rule 25, C.P.C. is concerned, it relates to framing of additional issues at the appellate stage. It is neither mandatory nor it can be said that it was essential for correct decision to refer the newly framed issue to the trial court. The issue was decided by the appellate court on the basis of the pleadings and the findings before the trial court and, therefore, there is no applicability of the decisions cited by the learned Counsel.
5. After carefully examining the impugned judgments of the Courts below, I am of the considered view that the substantial questions of law raised in respect of the amendment having been allowed and framing of new issue at the appellate stage does not exist. The lower appellate court has neither accepted any additional evidence nor the issue in question called for any evidence for a decision. In fact the trial court had already recorded its finding on the issue Nos. 1 and 2 where it was concluded that the map could not be sanctioned for the reason that it was barred by provisions of U.P. Urban Planning and Development Act, 1973 and Building Bylaws framed under the Act by the respondent No. 2.
6. In view of what has been discussed above, no substantial question of law arises in the instant second appeal and the appeal is accordingly dismissed. There shall be no order as to costs.