# [1974] 3 S.C.R. 101

- **Citation:** [1974] 3 S.C.R. 101
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Civil Appeal No. 1598 of 1967
- **Bench:** P. Jaganmohan Reddy, S.N. Dw1vEDI, P.K. Gosw."11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-3-s-c-r-101-6222
- **Pages:** 8

## Headnote

Civil Procedure Code-Amend111ent of the written shUe1ne11t during pe11d1:11cy of the
appeal-Whether Appellate Court can order amend111e11t of the written statement
in l'ieft' of cltange of circwnstances not co11te111plated at the time of i11stitu1ioJt of the
suit.
The respondent no.1, Digamber Jain Praband Karini Sabha instituted a suit agJinst
the appellant for recovery of possession of certain agricnltllral land,
Respondent
Smt. Rajrani was the malik maqbooza of the land who, in 1954, gifted the land by a
registered gift deed in favour of respondent no. 1. The third and fourth r~spondcnts
were cultivating the land. Respondent no. 1 sued them for possession but they pleaded that the appellant had sub-let the land to them. The suit was decreed.
Their
appeals \verc disnlisscd. The appellant thereafter had filed a suit against respondent no. l for a declaration that the gift made by the 5th respondent in favour of
the 1st respondent was void; but the suit was dismissed for default.
The suit from which the present appeal arose, was filed and all the defendants
except Smt. Rajrani filed their written statement. The trial court decreed the suit
in favour of respondent no. 1. On appeal, the first appellate court allowed the appeal
but on a second appeal, the High Court reversed the decree of the app~llate court
and restored the decree of the trial court and hence the present appeal before this
Court.
Remanding the case to the trial court,
HELD : (1) In his written statement, the appellant had admitted Smt. Rajrani's
ownership of the land. But he had pleaded that he became the owner of the land by
adverse possession for more than 12 years from 1937. The khasra entries from 193738 to 1941-42 and 1943-44 to 1951·52 are all in favour of Smt. Rajrani. Further,
assuming that the appellants• adverse possession started in 1937 and continued till
1949, he becan1e the owner of the land in dispute in 1950. -Nevertheless, he did not
move the appropriate revenue authority to correct the entries in the record of
rights. Again one of his own witnesses, has admitted that the appellant had been
paying rent of the disputed land on behalf of Smt. Rajrani till 1958-59. Had he
became an owner by adverse possession in 1950, he would never have paid rent on
bcha1f of Smt. Rajrani.
Maharaja Srischandra Nandy v. &ajna1h Jugal Kishore 62, Indian Appeals 40;
Deity Paltabhiramaswanzy v. S. H::inym1yya, A.LR. 1959 S. C. 57 and H. R.
Raniacha11dra11 Ayyar v. Ramalingani Clzettiar, [1963) 3 S.C.R. 604, referred to.
(2) During pendency of the appeal, as Smt. Rajrani died in 1968, the appeallant
filed an application for substitution of himself as her legal representative in place of
Smt. Rajrani. No order has yet been made on this application. Now he has made
another application in the course of hearing seeking amendment of his written
statement in view of the changed circumstances to the effect that as the limited owner
Smt. Rajrani died, he is entitled to the disputed property as the sole reversioner and
respondent no. 1 and no right in the said lands.
lt is, therefore open to the Court, including a court of appeal to take notice of
events which have happened afrer the institution of the suit and afford relief to the
parties.
Rai Charan lv/amlal and 01101/ier \', Bisll'anath 111andal and others A.LR. 1915
Cal. I 03, referred to.
(3) Under .the circumstances, since the death of Smt. Rajrani creates a
fresh
[cause of action to the appellant who claims to be her next reversioner, it will be just
and proper to allow the amendment. Therefore, the amendment is allo\\'ed
and
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SUPREME COURT REPORTS
C 19741 3 s.c.R.
the case will go back to the trial court and the trial court will give reasonable time
to the respondent to file a reply to the amended written statement. The trial Court
will then record its findings and the new plea raised by the appellant and shall forward
them to this Court through High Court within 4 months of the receipts of the
record.

## Text

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101
SHIKHARCHAND JAIN
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DJ GAMBER JAIN PRABAND KAR!NI SABHA AND OTHERS
Jan11a1J' 11, 1974.
[P. JAGANMOHAN REDDY, S.N. Dw1vEDI AND P.K. Gosw."11, JJ.]
Civil Procedure Code-Amend111ent of the written shUe1ne11t during pe11d1:11cy of the
appeal-Whether Appellate Court can order amend111e11t of the written statement
in l'ieft' of cltange of circwnstances not co11te111plated at the time of i11stitu1ioJt of the
suit.
The respondent no.1, Digamber Jain Praband Karini Sabha instituted a suit agJinst
the appellant for recovery of possession of certain agricnltllral land,
Respondent
Smt. Rajrani was the malik maqbooza of the land who, in 1954, gifted the land by a
registered gift deed in favour of respondent no. 1. The third and fourth r~spondcnts
were cultivating the land. Respondent no. 1 sued them for possession but they pleaded that the appellant had sub-let the land to them. The suit was decreed.
Their
appeals \verc disnlisscd. The appellant thereafter had filed a suit against respondent no. l for a declaration that the gift made by the 5th respondent in favour of
the 1st respondent was void; but the suit was dismissed for default.
The suit from which the present appeal arose, was filed and all the defendants
except Smt. Rajrani filed their written statement. The trial court decreed the suit
in favour of respondent no. 1. On appeal, the first appellate court allowed the appeal
but on a second appeal, the High Court reversed the decree of the app~llate court
and restored the decree of the trial court and hence the present appeal before this
Court.
Remanding the case to the trial court,
HELD : (1) In his written statement, the appellant had admitted Smt. Rajrani's
ownership of the land. But he had pleaded that he became the owner of the land by
adverse possession for more than 12 years from 1937. The khasra entries from 193738 to 1941-42 and 1943-44 to 1951·52 are all in favour of Smt. Rajrani. Further,
assuming that the appellants• adverse possession started in 1937 and continued till
1949, he becan1e the owner of the land in dispute in 1950. -Nevertheless, he did not
move the appropriate revenue authority to correct the entries in the record of
rights. Again one of his own witnesses, has admitted that the appellant had been
paying rent of the disputed land on behalf of Smt. Rajrani till 1958-59. Had he
became an owner by adverse possession in 1950, he would never have paid rent on
bcha1f of Smt. Rajrani.
Maharaja Srischandra Nandy v. &ajna1h Jugal Kishore 62, Indian Appeals 40;
Deity Paltabhiramaswanzy v. S. H::inym1yya, A.LR. 1959 S. C. 57 and H. R.
Raniacha11dra11 Ayyar v. Ramalingani Clzettiar, [1963) 3 S.C.R. 604, referred to.
(2) During pendency of the appeal, as Smt. Rajrani died in 1968, the appeallant
filed an application for substitution of himself as her legal representative in place of
Smt. Rajrani. No order has yet been made on this application. Now he has made
another application in the course of hearing seeking amendment of his written
statement in view of the changed circumstances to the effect that as the limited owner
Smt. Rajrani died, he is entitled to the disputed property as the sole reversioner and
respondent no. 1 and no right in the said lands.
lt is, therefore open to the Court, including a court of appeal to take notice of
events which have happened afrer the institution of the suit and afford relief to the
parties.
Rai Charan lv/amlal and 01101/ier \', Bisll'anath 111andal and others A.LR. 1915
Cal. I 03, referred to.
(3) Under .the circumstances, since the death of Smt. Rajrani creates a
fresh
[cause of action to the appellant who claims to be her next reversioner, it will be just
and proper to allow the amendment. Therefore, the amendment is allo\\'ed
and
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SUPREME COURT REPORTS
C 19741 3 s.c.R.
the case will go back to the trial court and the trial court will give reasonable time
to the respondent to file a reply to the amended written statement. The trial Court
will then record its findings and the new plea raised by the appellant and shall forward
them to this Court through High Court within 4 months of the receipts of the
record.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 1598 of 1967.
Appeal by special leave from the judgment and decree dated
October 17, 1966 of the Madhya Pradesh High Court in Second Appeal No. 521 of 1962.
·
V. M. Tarkunde, S. L. Jain and M. S. Gupta, for the appellant.
M. C. Chagla, S. K. Bagga, S. Bagga, Yash Bagga and Rani 4rora,
for the respondents.
The Judgment of the Court was delivered by
DWIVEDI, J.-Jt is the defendant's appeal. The plaintiff Digamber
Jain Praband Karini Sabha, Panagar, instituted a suit against the
defendant Shikharchand Jain for recovery of possession over certain
agricultural lands situate in mauza Jmlai. Smt. Rajrani, fifth defendant (now dead) was the proprietor of a Patti in mauza Imlai. The
land in dispute fell in that Patti. It was her sir. The area of the land
is 12 ·86 acres. · Smt. Rajrani became malik maqbooza of the land
on the abolition of the proprietary rights in the State in 1951. On
Janua1y 18, 1954, she gifted the land by a registered gift deed in favour
of the plaintiff (which is registered under the Madhya Pradesh Public
Trust Act, 1951). Ram Das and Ballu, the third and fourth defendants, were cultivating the land. The plaintiff instituted a suit against
them on July 15, 1954. In the said suit they pleaded that Shikharchand
had sub-let the land to them. The suit was decreed. Their appeals
were dismissed on May 4, 1957. Shikharchand also instituted a suit
on November 3, 1955 against the plaintiff and Smt. Rajrani for a
declaration that the gift made by her would be void after her death.
We are told that the suit has been dismissed in default. As the aforesaid defendants are disputing the plaintiff's title, the suit was instituted. All the defendants except Smt. Rajrani filed a joint written
statement. They denied the plaintiff's title to the land. Smt. Rajrani held a limited estate in the land and the gift deed would be ineffective after her death. She could not gift the entire property.
Shikbarchand has been in possession over the land since 1937 as an
owner thereof and has acquired rights of an owner by adverse possession for more than 12 year!. Smt. Rajrani filed a separate written
statement. She has supported the case of the plaintiff. The trial court
framed a number of issues. Of them, only two now survive for consideration. '.fhey are issues Nos. I and 4.
Issue No. 1 is :
"l(a) Whether the defendant No. 5 Smt. Rajrani was the
owner of the suit fields till 18-1-1954?
(b) whether she was also in possession of the suit fields till
18-1-1954 ?
4. (a) whether defendant No. 1 (Shikharchand) has been in
exclusive, continuous and uninterrupted possession of the suit
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fields since 1937 adversely t() the defendant N(). 5 and the plaintiff?
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"(b) whether, therefore, the defendant N(). I has p>rfected
his title by adverse possessi()n ?
Issue No. 1 was answered in fav()ur ()f the plaintiff. Issue N(). 4
was answered against Shikharchand. The trial court held that he
was in possession for and on behalf of Smt. Rajrani and n()t in bis
own right. The trial court granted a decree for possessi()n to the
plaintiff.
Defendants Nos. 1 to 4 went in appeal. The first appellate court
all()wed the appeal and set aside the decree of the trial court and dismissed the suit, The plaintiff then filed a second appeal in the High
Court of Madhya Pradesh. The High Court has reversod the decree
of the first appellate court and restored that of the trial court. Hence
this apj:Jeal by Shikharchand.
The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the ()Wfter
thereof by adverse possession before Smt. Rajrani transferred the
land to the plaintiff. Sri Tarkunde, counsel for Shikharchand, says
that it is a finding .of fact and that accordingly the High Court could
not interfere with it in second appeal. It appears that the High Court
was aware that it was interfering with a finding of fact in a second
appeal. So the High Court has explained. "(Defendants 1 to 4)
clearly failed to establish by positive evidence the adverse possession
of (Shikbarchand) for more than twelve years at any point of time so
as to rebut the statutory presumption of possession arising in favour
of the appellant and its predecessor-in-title Smt. Rajrani. Therefore,
with due respect to the learned appellate Judge, I might say that the
question has been absolutely misconceived by him and he has not
approached the que,tion in a proper and legal manner with a view
to apply the law to the facts found established from the record. In
this view, the decree passed by the first appellate court cannot be
sustained either on facts or law." So according to the High Court
the finding recorded by the first appellate court was arrived at by
overlooking the statutory presumption of possession in favour of the
plaintiff and Smt. Rajrani and his apprc>ach to the issue. before him
was not proper and legal. In other words, the High Court intervened
under cl. (c) of s. 100(1) of the Code of Civil Procedure. According
to the High Court, the finding of the first appellate court suffered
from a "substantial error or defect in the procedure provided ...•
by any other law for the time being in force, which may possibly have
produced error or defect in the decision of the case upon the merits."
It is now to be seen whether the first appellate court's finding
really falls within the grip of s. IOO(!Xc) of the Code of Civil Prc>ce·
dure. In his written statement Shikbarchand has admitted Smt.
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Rajrani's ownership of the land. But he has pleaded that he has
become the owner of the land on account 'of adverse possession for
more than 12 years from 1937. The burden of proving the acquisition of ownership by adverse possession lay on him. The Khasra
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[ 1974 I 3 9.C.R.
entries from 1937-38 to 1941-42 and 1943-44 to 1951-52 arc all in
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favour of Smt. Rajrani. They show that she was in possession Over
the land during those years. Khasra is a record of right according
to s. 45(2) of the Central Province• Land Revenue Act, 1917. Section 80(3) of that Act provides that entries in a record of risgt shall be
presumed to be correct unless the contrary is shown. Tuts providon
raises a pre•umption cf correctnes• of the aforesaid Khasra entries.
The burden of proving adve1•e posses!ion acco1dinqly Will a heavy
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one. The judgment of the fhst appellate couit shows that it has not
kept in mind this aspect while examining the evidence. In the ti-st
step, it has proceeded to assess the evidence adduced by Shikharchand.
After discussing' that evidence, it has recorded a finding that he was in
possession. Thereafter, in the second step, it has proceeded to take
the view that no reliance can be placed on Khasra entries. It has
summed up the discussion thus :
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"(A) II these witnesses (of Shikharchand) have stated that the
'possession of the fields was with Shikhatchand. Their statements are further supported by documentary evidence and,
therefore, there is no room for any doubt that the possession was
not with Shikharchand. It is ttue that in Patwari papers Mst.
Rajrani's name appears and that the dues were deposited on
behalf of Mst. Rajrani. But in my opinion the entries in.
Khasra and the fact that the receipts we1 e issued in the naine of
Mst. Rajrani would not by themselves establish the fact of ·
pbssession. Tt is settled law that entries in Khasra have only
presumptive value, and it is difficult to conclude from ·these
entries that the possession was with Mst. Rajrani. The falsity
of the entries in Khasra is clear from the fact that fr9m 1937
to 1947 the name ofMst. Raj1ani appeared iiilhe Khasra Panchsala and yet Mst. Rajrani's admission in D/1. shows that she
was . not in possession. This fact is enough to show that no
reliance could be plaeed on the Khura entries."
As already pointed out, this passage shows that the first appeUate
court proceeded in the reverse order. Moreover, the Kh11Sra entries
have been discarded solely for the reason that Smt. Rajrani has admited in Ex. D/I that she was not in possession. But Ex. D/l has
been entirely misunderstood by the first appellate court. Exhibit
D/I is a 'copy of the plaint filed by Smt. Rajrani in a suit for profits
against Shikharchand. Shikharchand ·was Lambardar of the muhal
in which the Patti belonging to Smt. Rajrani was situate~ Jn the
first paragraph of her plaint she has mentioned this fact. Thereafter
she went on to say that she was entitled "to get her share of profits
from the defendant." In paragraph 2 she has said : "That the defendant is in possession of all the sir and khudkasht land of her full
...... patti of the village ...... that as the defendant did not render
an account, nor paid any thing in spite of repeated demands and a
notice by the plaintiff, he is liable to pay interest by way of damages
at the rate of -/8/- per cent per month" and the amount detailed in
the schedule of accounts attached to the plaint. In the schedule she
has sllown the amount of rent recovered by Shikharchand from the
tenonts. 1 She has also shown the estimated income from sir and
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khudkasht land belonging to her. After making certain deductions,
a total amount of Rs. 318/7 /- was claimed from Shikharchand. The
suit was filed in July 1942. The suit for profits related to a period
between 1938-39 and 1940-4!. We do not think that paragraph 2
of the plaint can be read in the manner it has been read by the first
appellate court. It was a suit for profits by a co-sharer against the
Lambardar. It was not a suit for mesnc profits which an owner of
land may claim from a trespasser. It was really a suit for accm111ts
from the Lambardar. So it is not possible to spell out from paragraph 2 an admission from Smt. Rajrani that Shikharchand was Jl1
adverse possession over her sir land. Further Shikharchand did n?t
file a copy of his own written statement, nor a copy of the judgment m
the suit. If he had denied his possession over her sir land, the suit
for profits from sir land would have been dismissed. If he had pleaded adverse possession, over her sir, then also her suit for profits from
sir land would have been dismissed. If, on the other hand, the suit
for profits of sir land were decreed, it would follow that Shikharchand
was held to be in permissive possession and not in adverse possession.
Jn the result, we are of opinion that the first appellate court was wholly
wrong in discarding the Khasra entries on the solitary statement m
paragraph 2 of her plaint. The High Court could, therefore, interfere with its finding under s. lOO(l)(c).
The High Court has considered afresh the entire evidence on
record and bas held that Shikharchand has failed to establish by poSltive evidence his adverse possession for more than 12 years. The
appellant could not show to us that the finding is not ~ustainable on
the evidence on record. It is not necessary for us to reappraise that
evidence again, but we may point out two circumstances which heavily
tell against the appellant. Assuming that his adverse possession
started in 1937 and continued till 1949, he became the owner of the
land in dispute in 1950. Nevertheless he did .not move the appropriate revenue authority for the correction of the entries in the record
of rights. He did not get the name of Smt. Rajrani expunged from
the record and his name entered therein. Again, Beni Ram, one of
his witnesses, has admitted that Shikharchand had been paying rent
of the sir land of Smt. Rajrani on behalf of Smt. Rajrani until 195859. Had he become an owner by adverse possession in 1950, he
would never have paid rent on behalf of Smt. Rajrani.
Counsel for the appellant has referred us to Maharaja Srischandra
Nandy
v. Baijnath Juga/ Kishore,(1) Deity Pattabhiramaswamy \'.
S. Hanymayya(2) and R. Ramachandran Ayyar v. Rama/ingam Chettiar(3)
But none of these cases help the appellant on the facts of this case.
In the last case this Court said : "(l)f in dealing with a question of
fact .the fir_st appellat~ court has placed the onus on a wrong party
and its findmg of fact 1s the result, substantially of this wrong appro·
ach, that m~y be regarded as a defect in procedure under s. IOO(l)(c)."
The same view has been expressed in Ladli Prasad Jais val. v. Kamal
Distillery Co. Ltd.(4) In this case the High Court has u~t a finding
(I) 62 Indian Appeals 40.
(3) (1963]
3 S. C. R. 604.
(2) A. I. R. 1959 S.C. 51.
(4) [1964( 1 S. C. R. 270.
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[ 19741 3 S.C.R.
of fact recorded by the lower apJ>l'llate court inter alia on the ground
that the burden of proof was wrongly placed on the plaintiff. Shah
J., while affirming the judgment of the High Court, said: "A decision of the first appellate court reached after placing the onus wrongly
.... is not conclusive and a second appeal lies to the High Court
against that decision."
In Jai Krishna v. Babu. (1) it was held that possession of a nonowner after partition is adverse. No exception may be taken to this
preposition. But we fail to understand how this case will assist the
appellant.
We now pass on to another aspect of the case. During pendency
of this appeal Smt. Rajrani died on December 5, 1965. The appellant first filed C.M.P. No. 1377 of 1969 for his substitution in place
of Smt. Rajrani, the fifth respondent, as her legal representative. No
order has yet been made on this application. Now he has made
another application in the course of hearing. By this application he
seeks to amend his written statement. He wants to make this addition
to the written statement :
"12(a) that the gift deed dated 18-1-1954 was executed by Smt.
Rajrani who was a limited owner having a widow's estate on
the date of the execution of the gift deed. Assuming though not
admitting the said gift deed was valid it is submitted that the
above gift could at most enure for the life of the defendant No. 5.
The plaintiff cannot have any rights in the suit lands after
the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist. the
claim of the plaintiff.
(b) that the geneology of the family is as under :
Dakhandji
(died issuelcss)
Bihari Lal .
Bhagwan'dasji
Nathulalji
(died issue1ess,
husband of defandant l
No.2)
MonLlalji
(died issueless)
Shrichandji
Kaplhandji
Shikharchld
(plaintiff)
"12(c) that the deceased Smt. Rajrani could not transfer
the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer
is not binding on the defendant after her death."
(1) A.I.R. 1933 Nagpur 112.
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He also prays for the renumbering of present paragraph 12 as
paragraph 13 of the written statement. Sri Tarkunde has submitted
that if the assertions made in the new paragraph 12 are accepted by
the Court, the respondent's suit will have to be dismissed.
I_t is also
said that the new situation arising on the death of Smt. Rajrani during
pendency of the appeal can be considered by the Court in order to
mould the decree in the suit out of which this appeal has arisen. In
our view, Mr. Tarkunde, is right in this submission. Ordinarily,
a snit is tried in all its stages on the cause of action as it existed on
the date of its institution. But it is open to a Court (including a court
of appeal) to take notice of events which have happened after the
institution of the suit and afford relief to the parties in the changed
circumstances where it is shown that the relief claimed originally has
(I) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete
justice between the parties (See Rai Charan Manda/ and another v.
Biswanath Manda/ and others)(').
Sri Chagla, counsel for the respondent, has submitted that the
application for amendment of the written statement should not be
allowed. It is said that the appellant has alleged in his written statement that Smt. Rajrani could not transfer the disputed land as she
was a limited owner having a widow's estate. The trial court had
framed specific issue on this aspect and recorded a finding against the
appellant. The trial court said : "(Smt. Rajrani) is a jain widow and
therefore she is competent to transfer the suit lands for rcligioas and
charitable purposes." The trial court ·decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the
trial court was set aside. The respondent then filed a second appeal
in the High Court. M already stated, the High Court set aside the
decree of the first appellate court and restored the decree of the
trial court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate court or in.
the High Court, he should not be allowed to challenge it now by an
amendment of his written statement. We find it difficult to accept
this submission of Sri Chagla, Even if the assertions made in the application for amendment of the written statement are found to ht"
true, the appellant could not have non-suited the respondent during
the life time of Smt. Rajrani. The gift was valid during her life time ..
Her death gives a fresh cause of action to the appellant who claims.
to be her next reversioner. It appears to us that it will be just and
proper to allow the amendment sought for. It will shorten litiga--
t1on.
S~ Chagla has also pointed out that the respondent has acquired!
new nghts under the Land reform measures passed by the Madhya
Pradesh Legislature. It will be open to the respondent to file a reply·
to the amendment when the case goes back to the trial court and raise
an~ plea which according to it is likely to defeat the appellant's new
claim.
(I) A.J.R. 1915 Cal. 103
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[ 1974 J 3 s.c.n.
So we allow the application for amendment of the written statement on payment of Rs. 200 as costs to the respondent. The case
will now go back to the trial court. The trial court will allow reasonable time to the resp:indent to file a reply to the amended written
~tatement. Thereafter the trial court will record evidence on the
new plea raised by the appellant by his amendment and by the respondent in its reply. The trial court will then record its findings
and forward them to this Court through the High Court. The trial
,court should send the findings within four months of the receipt of the
record from this Court. C.M.P. No. 1377 of 1969 is dismissed as infructuous on receipt of findings, the appeal will be listed for hearing
before the Court.
s.c.
Case Remanded.
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