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Judgment
S.U. Khan, J.—This writ petition is directed against order dated 5.1.1985 passed by the lower appellate court in Civil Appeal No. 267 of 1976 allowing the amendment application of landlady original Respondent No. 2 Smt. Jagdamba Devi.
Landlady original Respondent No. 2 since deceased and survived by legal representatives filed O.S No. 9 of 1965 against tenant Mata Prasad since deceased and survived by the Petitioners. The suit was for ejectment and recovery of arrears of rent pendente lite and future damages at the rate of Rs. 4 per month.
According to the plaint the tenancy of the house in dispute was continuing since 26.6.1950. Suit was decreed by Munsif on 29.5.1976. Against the said judgment and decree, Mata Prasad filed Civil Appeal No. 267 of 1976, which was transferred for disposal to the Court of A.D.J. Court No. 4 Jaunpur. After conclusion of arguments in the appeal, landlord Respondent No. 2 who was also Respondent in the appeal filed application seeking amendment in the plaint. Through order dated 5.1.1985, appellate court allowed the amendment, hence this writ petition.
Copy of the plaint is Annexure-1 to the counter-affidavit. In para 4, it was stated that Defendant took the house on rent of Rs. 10 per year through rent note (kiraya nama) dated 26.6.1950. Through amendment application filed in appeal the said para was sought to be amended. Through amendment the word kiraya nama used in the said para was changed by the word kiraidari (tenancy). In the end of the original para 4 of the plaint, it was also added that thereafter a rent note (kiraya nama) was also executed on 26.6.1950 as memorandum thereof (i.e., tenancy).
In the appeal, tenant had argued that the rent note being unregistered and for more than one year was inadmissible in evidence.
In my opinion, the amendment was wrongly allowed. It clearly amounted to withdrawal of admission and change of the vital aspect of the case. In para 4 of the original plaint, it was categorically stated that the tenancy started through rent note dated 26.6.1950. Thereafter it could not be asserted that first tenancy started and thereafter on the same date through memorandum in the form of rent note it was recognized.
Learned Counsel for the Petitioner has cited Heeralal Vs. Kalyan Mal and Others, wherein it has been held that through amendment admission cannot be withdrawn.
In my opinion the appellate court wrongly allowed the amendment, which had the effect of withdrawing the admission.
Accordingly impugned order deserves to be set aside.
Writ petition is therefore allowed. Impugned order is quashed.
However, it is directed that the question of admissibility of the rent note and the question as to whether irrespective of rent note month to month tenancy had come into existence by delivery of possession and payment of rent shall be decided by the appellate court without being influenced by this order through which amendment in the plaint has been declined. In this regard reference must be made to Antony Vs. K.C. Ittoop and Sons and Others, and the authorities referred therein.
It is further directed that during pendency of appeal ejectment of tenant Petitioner shall remain stayed on the condition that he deposits Rs. 500 per month as rent before the appellate court with effect from October, 2006 onwards by 7th of each succeeding month. The said amount shall at once be paid to the landlord. This direction is being issued in view of the Supreme Court authority of Union of India (UOI) and Others Vs. Upper Ganges Sugar and Industries Ltd.,