Sushil Kumar vs Xth Addl. District Judge and Another

M. Katju, J.—This writ petition has been filed against the impugned order dated 21.8.1993.

I have heard learned Counsel for the parties. I do not find any merit in this writ petition.

It appears that the Petitioner is a tenant in the premises in dispute of which the Respondent is the landlord. The Respondents filed a suit for eviction against the Petitioner which was decreed by the trial court on 3.3.1990. The Petitioner filed a revision against that judgment. During the course of revision he sought amendment in the pleading. That application has been rejected by the impugned order, hence this writ petition.

The settled law is that ordinarily no fresh evidence is allowed in appeal or revision. The parties have to rely on the same evidence which they led before the trial court while arguing the appeal or revision. It is only in the exceptional circumstances mentioned in Order XLI, Rule 27 that fresh evidence is allowed in appeal. It follows as a logical corollary that no amendment to the pleadings should ordinarily be allowed in appeal or revision if it entails leading fresh evidence. It is only if the fresh evidence consequent to such amendment is permissible by Order XLI, Rule 27, CPC or if the amendment is of a purely legal nature requiring no further evidence that such amendment of the pleading should be allowed at the stage of appeal or revision. In the present case the Petitioner did not seek any amendment to the pleading when the case was pending before the trial court. No doubt, according to the Order VI, Rule 17, CPC amendment can be allowed at any stage but the proposition that an appeal is a continuation of the suit is not an absolute proposition. In a certain sense, an appeal is a continuation of the suit, but in another sense it is not. For example, as observed above, no fresh evidence is ordinarily allowed in appeal. The Petitioner did not seek amendment at the time when the suit was pending In the trial court. Since the amendment would require adducing of fresh evidence at the revisional stage, it cannot be allowed now. It may be noticed that in his written statement the Petitioner had admitted that the shop in question was built in 1970. By the amendment sought to be made at the revisional stage, he sought to change his plea and allege that the shop was built in 1966-67. This will certainly entail leading fresh evidence, and no good reason has been given why such a plea was not taken before the trial court. Hence the evidence which will be led if such an amendment is allowed would not be permissible under Order XLI, Rule 27, Code of Civil Procedure

Hence I do not find any infirmity in the impugned order. The writ petition is accordingly dismissed.