JUDGMENT V.K. Mehrotra, J. - Defendant, Smt. Tara Devi, has filed the present Second Appeal assailing therein the decree dated January 1, 1976 of the VIIth Addl District Judge, Allahabad in a suit for declaration and permanent injunction filed against her by the plaintiff-respondents. The trial court had dismissed the suit. The lower appellate court decreed it in part. 2. The plaintiff-respondents (for brevity the 'plaintiffs') filed suit no. 297 of 1974 in the court of the Munsif West, Allahabad praying for a declaration that they were tenants of a shop of house no. 36, K.P. Kackar Road, Allahabad on a monthly rent of Rs. 100/- and were not liable to be evicted therefrom in execution of a decree passed in suit no. 950 of 1973 (Smt. Tara Devi v. Nagendra Narain Shukla) of the court of the Judge, Small Causes and that they were tenants of that shop and for injunction restraining the defendant- appellant (hereinafter "the defendant) from interfering with their occupation of the said shop as such. The case of the plaintiffs, in substance, was that one Abdul Wahid was the tenant of the defendant of the ground floor of house no. 36 consisting of three rooms of which the defendant was the owner. In a decree obtained by the defendant, Abdul Wahid was evicted and the portion vacated by him was allotted on November 23, 1961 in favour of the defendant's brother-in-law Nagendra Narain Shukla. This order of allotment was, however, collusive and a paper transaction and was never given effect to. According to them, the shop in suit had been in occupation and tenancy of the third plaintiff (Kesho Prasad) from the year 1962 as a tenant of the defendant and in which the third plaintiff had been carrying on business in the name and style of M/s Adarsh Transport Forwarding Agency (the first plaintiff) as an exclusive proprietor thereof till the year 1968. With the consent of the defendant, plaintiff Nos. 2 and 4 were admitted as partners of the first plaintiff and the rent of the shop was increased to Rs 100/- per month. Rent had been paid by the plaintiffs up to the month of March, 1973 where after neither the defendant nor Nagendra Narain Shukla even came to collect the rent from them. 2 and 4 were admitted as partners of the first plaintiff and the rent of the shop was increased to Rs 100/- per month. Rent had been paid by the plaintiffs up to the month of March, 1973 where after neither the defendant nor Nagendra Narain Shukla even came to collect the rent from them. In June, 1973 the said Nagendra Narain Shukla in collusion with the defendant locked the portion under the tenancy of the plaintiffs claiming to be proprietor of the Adarsh Transport Forwarding Agency and its possession could be restored to them only through the intervention of the police. The defendant and Shukla became annoyed at this and wanted to evict the plaintiffs. With that object in view, suit No. 950 of 1973 was filed by the defendant in the court of the Judge, Small Causes, Allahabad and she obtained an ex parte decree against Shukla. It was claimed by her in the suit that Shukla was the tenant of the shop and after serving a notice under section 106 of the Transfer of Property Act, as Shukla had defaulted in payment of rent for more than five months, a suit for his ejectment and recovery of arrears of rent had to be filed by her. The entire proceedings in the suit, in which the default in payment of rent by Shukla was attributed to the alleged difference between him and his subordinate holders of the transport business (the plaintiffs), were characterised as being collusive and fraudulent. It was asserted that the plaintiffs were tenants of the defendant and not sub-holders through Shukla and the collusive decree in suit no. 950 of 1973 behind the back of the plaintiffs was said to be not binding upon the plaintiffs. 3. The suit was resisted by the defendant, inter alia, on the ground that the plaintiffs were not her tenants of the premises in suit which were never let out to them by her nor did they pay any rent to her; that in pursuance of the order of allotment dated November 23, 1961 in his favour, the premises in suit were let out by her to Shukla who became her sole tenant and paid rent to her against regular receipts granted by her. When Shukla defaulted in payment of rent for more than five months, presumably, on account of difference between him and his subordinate holders of the transport business, she served a notice of demand and of termination of tenancy, thereafter filed suit no. 950 of 1973 and obtained a decree for eviction of Shukla therein on November 15, 1974. This decree was not collusive nor was it true that Shukla was her agent. Since the plaintiffs were let into possession by Shukla as sub holders in the transport business, the decree in suit no. 950 of 1973 was binding upon them and they were liable to be ejected in execution thereof. An objection was taken that the suit was bad for non-joinder of Shukla as a tenant. 4. An application was moved by the plaintiffs in the trial court on December 2, 1974 (paper no. 89-A) seeking the addition of Shukla as a defendant by amending the plaint in that regard. This appeared to have been done in view of issue no. 3 which was framed by the trial court and was to the effect whether Nagendra Narain Shukla was a necessary party and the suit was not maintainable in his absence as alleged in the written statement. Since, however, the counsel for the defendant gave up his objection regarding non joinder of Shukla as a defendant in the suit, the trial court refused the prayer for the amendment of the plaint made by the plaintiffs by order dated December 3, 1974 for, in the opinion of the trial court, Shukla was neither a necessary nor a proper party to the suit. 5. During the trial, the defendant examined herself as a witness. Her cross- examination concluded on March 13, 1975. On that date Nagendra Narain Shukla filed a large number of documents on behalf of the defendant and while he was present in court, an application (paper no. 194-C) was moved on behalf of the plaintiffs for recording his evidence as a court witness. This was objected to on behalf of the defendant and an objection (paper no. 195-C) was filed on her behalf on March 21, 1975. 194-C) was moved on behalf of the plaintiffs for recording his evidence as a court witness. This was objected to on behalf of the defendant and an objection (paper no. 195-C) was filed on her behalf on March 21, 1975. The trial court, after hearing the learned counsel for the parties about the matter, rejected the application of the plaintiffs by an order dated March 31, 1975 on its view that Shukla had been summoned only for filing papers and that his evidence would not be of any use for the decision of the case. 6. The trial court framed several issues and on a consideration of the evidence on record came to the conclusion that the plaintiffs were not tenants of the defendant in the accommodation in suit but were sub-holders of and in possession of the suit premises through Nagendra Narain Shukla who was a tenant of the premises in suit in pursuance of the order of allotment. This order of allotment was, according to the trial court, validly made and it was in pursuance thereof that Shukla entered into possession and became a tenant of the premises. He was not an agent of the defendant as alleged by the plaintiffs. The decree in suit no. 950 of 1973 was according to the trial court, neither collusive nor fraudulent and that the plaintiffs, as sub- holders of Shukla, were bound as much by it as Shukla himself against whom a decree for eviction was rightly passed by the Judge, Small Causes, on the finding that Shukla was in default of payment of rent in respect of the demised premises. The trial court, therefore, dismissed the suit in its entirety. 7. Aggrieved by the decree, the plaintiffs challenged it in an appeal which came to be heard and decided by the VIIth Addl. District Judge, Allahabad. The learned Judge posed a number of points for decision of which the first related to the order of allotment dated November 23, 1961 in favour of Shukla. Dealing with this matter, the learned Judge noticed that in paragraphs 5 to 7 of the plaint, the plaintiff's had claimed that the order of allotment was only a paper transaction and was never given effect to and was a mere device to surreptitiously let out the different portions to different tenants on exorbitant rent. Dealing with this matter, the learned Judge noticed that in paragraphs 5 to 7 of the plaint, the plaintiff's had claimed that the order of allotment was only a paper transaction and was never given effect to and was a mere device to surreptitiously let out the different portions to different tenants on exorbitant rent. It was noticed by the learned Judge that the third plaintiff who had appeared in the witness box as P.W. 1 did not say a word in his examination-in-chief in support of the allegations made in paragraphs 5 to 7 of the plaint. After taking into consideration the oral and documentary evidence on record in this respect, the learned Judge concluded that, "in view of the aforesaid documentary evidence it cannot for a moment be doubted that the accommodation vacated by Abdul Wahid in the ground floor of house no. 36 Zero Road, Allahabad was allotted to Nagendar Narain Shukla on 23-11-61 and in pursuance of the allotment order he became tenant of the entire ground floor including the shop in dispute." 8. The learned Judge thereafter proceeded to consider the second and third points posed by him which were to the effect as to whether the third plaintiff took the shop in dispute on rent from the defendant in March, 1962 and was not sub-holder under Nagendra Narain Shukla and as to whether all the plaintiffs became tenants of the defendant in the year 1968 as claimed in paragraph 4 of the palint. Examining the oral and documentary evidence in some detail, the finding that was recorded by the learned Judge in respect of these points was that it was not established that any contract of tenancy was entered into between the third plaintiff and the defendant in March, 1962 or that the 2nd and 4th plaintiffs were admitted as partners and, therefore, became tenants with the consent of the defendant in July, 1968, The 4th, 5th and 6th points which were passed for determination by the learned Judge related to the maintainability of suit No. 950 of 1973, the nature of the decree in the said suit being collusive, illegal and without jurisdiction and the liability of the plaintiffs to be evicted from the premises in suit in pursuance of that decree which was obtained by the defendant against Shukla for his eviction from the premises. The conclusion to which the learned Judge arrived was that inasmuch as the notice by which the defendant purported to terminate the tenancy of Shukla related only to a portion of the premises let out to him, suit No. 950 of 1973 for the eviction of Shukla was not maintainable and that the ex parte decree in the suit was collusive. The relevant portion of the findings, to extract the words of the learned Judge himself, were that, "since the notice Ext. 20 dated 1-6-1973 delivered by Smt. Tara Devi to Nagendra Narain Shukla Dasti was in respect of the shop in dispute only, namely, a part of the tenaments, therefore, the suit for eviction (No. 950 of 1973) filed in the court of Judge, Small Causes, Allahabad by Smt. Tara Devi was not maintainable............In the instant case, both Smt. Tara Devi had collused with her brother-in-law Nagendra Narain Shukla with a view to cost the plaintiffs from the shop in dispute. The ex parte decree in case no. 950 of 1973 by Judge Small Causes. Court, Allahabad is thus found to be collusive and not binding on the plaintiffs ............The plaintiffs are therefore not liable to be evicted in execution of the aforesaid decree." Consequently, the learned Judge took the view that the plaintiffs were not entitled to the relief of declaration that they were tenants of the two door shop of house no 36, Zero Road, Allahabad but were entitled to a declaration that they were not liable to be evicted in execution of the decree passed in suit no. 950 of 1973 and that the said decree was not binding upon them. The plaintiffs were held entitled to the relief of issue of permanent injunction as sought by them in relief (b) of the plaint. 9. Appearing before me on behalf of the defendant-appellant, her learned Counsel Sri Shehat Bahadur, has urged that even on the findings recorded by him, the learned Addl. District Judge was not justified in law in taking the view that the plaintiff-respondents were not liable to be evicted from the premises in suit in execution of the decree in suit no. 950 of 1973 in which a decree for the eviction of Nagendra Narain Shukla therefrom has been passed in favour of the appellant. District Judge was not justified in law in taking the view that the plaintiff-respondents were not liable to be evicted from the premises in suit in execution of the decree in suit no. 950 of 1973 in which a decree for the eviction of Nagendra Narain Shukla therefrom has been passed in favour of the appellant. The learned counsel has urged that on the findings concurrently arrived at by the two courts below that Nagendra Narain Shukla was the tenant of the defendant and that the plaintiffs were inducted into the shop by him, the plaintiff respondents could not resist their eviction from the disputed premises even if the decree in suit no. 950 of 1973 was collusive and had been obtained by the appellant in collusion with Shukla solely with the object of ejecting the plaintiff-respondents. He has placed reliance on the decision of the Supreme Court in the case of Rupchand Gupta v. Raghuhanshi (Pvt.) Ltd. and another., AIR 1964 Supreme Court 1889. He has, in particular, invited my attention to the observations made by their Lordships of the Supreme Court in paragraph 12 of the report to the effect that, "it has rightly been pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub- lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. "The absence, there fore, of the plaintiffs from the array of the defendants in suit no. 950 of 1973 cannot, according to the learned counsel, be said to be a defect which may affect the binding character of the decree obtained in that suit against them. "The absence, there fore, of the plaintiffs from the array of the defendants in suit no. 950 of 1973 cannot, according to the learned counsel, be said to be a defect which may affect the binding character of the decree obtained in that suit against them. The learned counsel has also argued that the mere fact that Shukla did not defend the said suit which was decreed ex parte against him would not necessarily lead to the conclusion that the decree in suit no. 950 of 1973 was a collusive one and has, in this regard, referred to the observations of their Lordships of the Supreme Court in the same decision earlier in paragraphs 9 and 10 the report to the effect that "Substantially the same idea is expressed in the definition given by Wharton's Law Lexicon, 14th Edition, p. 212 viz., "collusion in Judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose." This definition of collusion was approved by this Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 Supreme Court 593. Thus the mere fact that the defendant agrees with the plaintiff if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded." Argued the learned counsel that since the object of the landlord to eject the sub-lessee in execution to a decree obtained without impleading him has been held by the Supreme Court to be a legitimate object in the case of Rupchand itself, it cannot be said that the object of the appellant in seeking ejectment of the plaintiff-respondents from the shop by bringing a suit for the eviction of Shukla, without impleading the plaintiffs therein, was in any manner improper or not legitimate. Consequently, the conclusion of the lower appellate court that the decree in suit no. 950 of 1973 was collusive was itself untenable in law. Consequently, the conclusion of the lower appellate court that the decree in suit no. 950 of 1973 was collusive was itself untenable in law. Alternatively, reverting to the principal submission, it has been contended by Sri Shebat Bahadur that it was settled that even a collusive decree is binding upon the parties thereto or upon their representatives and as such the plaintiff respondents could not set up the finding of the decree in suit no. 950 of 1973 being collusive in character as a defence to their eviction from the premises. He has placed reliance in this regard upon the decision of Sulaiman, J. in Sahib Rai and others v. Behari Rai and others, AIR 1627 Allahabad 494 as well as of Calcutta High Court in Jaininikanto Harendralal Saha v. Bonomali Dey and others, AIR 1948 Calcutta 172 and of the Mysore High Court in S. Shankar Alva v. Ramayya Naik, AIR 1964 Mysore 16. 10. Sri K.M. Dayal who argued the case on behalf of the plaintiff respondents submitted that the decision of the Supreme Court in Rupchand's case (supra) did not lay down that even a collusive decree would bind the sub-lessee and that therefore, the court below was right refusing to let the appellant evict the plaintiffs from the premises in pursuance of the decree passed in suit no. 950 of 1973 which as a fact, was found to be collusive by it. In the forefront, however, he has urged that in the year 1973 when the suit aforesaid was filed, the defendant-appellant had ceased to be the owner of the property in dispute and she had, therefore no right to bring any suit for ejectment of Nagendra Narain Shukla with the result that the decree in suit no. 950 of 1973 having been rendered in suit at her instance was honest and was of no consequence whatsoever to the right of the plaintiffs to continue in possession of the shop in dispute. To sustain this argument, an application under Order 41 Rule 27 of the Code of Civil Procedure was moved in this Court for bringing on record a certified copy of a registered deed of gift dated November 3, 1971 by which the defendant appellant made a gift of building no. To sustain this argument, an application under Order 41 Rule 27 of the Code of Civil Procedure was moved in this Court for bringing on record a certified copy of a registered deed of gift dated November 3, 1971 by which the defendant appellant made a gift of building no. 36, K.P. Kakkar Road (Zero Road) Allahabad in favour of Nagendra Narain Shukla and obtained the mutation of his name in place of the appellant in Nagar Mahapalika records on the basis thereof. Certified copies of the extract of the relevant registers as well as of the applications made by the appellant and Nagendra Narain Shukla in that regard were also sought to be brought on record as additional evidence through that application. By another application, a prayer for being permitted to amend the plaint of the suit giving rise to the instant appeal was made on behalf of the plaintiff- respondents. Apart from consequential change to be made in some paragraphs of the plaint, it was sought by the application to add two paragraphs as paragraphs 16-A and 16-B to the plaint in the following terms: "16-A That the plaintiff of suit no. 950 of 1973 of the court of the J.S.C.C. Allahabad aforesaid ceased to be the owner and landlady of the disputed building with effect from the execution and registration of gift deed dated 18-11-1971 and Sri Nagendra Narain Shukla himself to become the owner thereof in as much as the said gift was duly accepted by him (Sri Shukla who got his name mutated in the records of the Nagar Mahapalika, Allahabad with the consent of the defendant in writing consequent upon the gift deed referred to above as its owner. Thus the aforesaid Judge Small Causes suit was not maintainable and Smt. Tara Devi having ceased to be the owner and landlady had no right to sue Sri Nagendra Narain Shukla in the year 1973 as Sri Shukla himself become the owner of the said building and the said suit was not a suit between landlord and tenant and was thus fraudulent and collusive and was not within the cognizance of the Judge Small Causes, Allahabad. 16-B. That the aforesaid suit was a same suit filed with dishonest motive at the instigation of Nagendra Narain Shukla to evict the plaintiffs illegally under the collusive decree obtained by Tara Devi against Nagendra Narain Shukla". 11. 16-B. That the aforesaid suit was a same suit filed with dishonest motive at the instigation of Nagendra Narain Shukla to evict the plaintiffs illegally under the collusive decree obtained by Tara Devi against Nagendra Narain Shukla". 11. The appellant naturally objected to both the prayers, namely that for admitting on record, inter alia, the certified copy of the gift deed as an additional evidence as well as to the prayer for amendment of the plaint at the stage of the second appeal. 12. Several decisions were cited before me by the learned counsel appearing for the respondents in support of his plea that it is open to this Court to permit reception of additional evidence and amendment of the plaint at the stage of second Appeal. The learned counsel for the appellant has conceded that this Court has the power to do so. It is not, consequently, necessary for me to deal with those cases. However, what has strenuously been argued by the learned counsel for the appellant in this regard is that even on the allegations contained in the affidavit in support of the application made by the plaintiff-opposite parties for bringing on record additional evidence, no case had been made out for reception of that evidence at this stage. In this connection, he has drawn my attention to clause (b) of sub rule (1) of rule 27 of order 41 C.P.C. as amended by this Code. The said clauses read as under. In this connection, he has drawn my attention to clause (b) of sub rule (1) of rule 27 of order 41 C.P.C. as amended by this Code. The said clauses read as under. "(b) The evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made," He has also drawn my attention to clause (aa) inserted with effect from February 1, 1977 in sub rule (1) of rule 27 of Order 41 C.P.C. by the Code of Civil Procedure (Amendment) Act (104 of 1978) providing for a similar requirement in the following terms: "(aa) The party seeking to produce additional evidence establishes that not withstanding the exercise of due diligence, such evidence was not within his knowledge or could, after the exercise of due diligence, be produced by him at time when the decree appealed against was passed," The submission of the learned counsel for the appellant in this regard is that the only assertion on behalf of the plaintiff opposite parties in support of their prayer for admission of additional evidence is that they had no knowledge about the document sought to be brought on record and that they could not produce the same earlier as they had no knowledge about it. There is no assertion that the said evidence was not within the knowledge of the plaintiffs in spite of exercise of due diligence, and that the plaintiffs could not produce it at the appropriate stage in spite of exercise of due diligence. 13. The submission made on behalf of the appellant against reception of additional evidence at this stage by this Court is well founded. The requirement prescribed by this Court by clause (b) of sub rule (1) of rule 27 of Order 41 C P.C. and by clause (aa) of that sub rule introduced by Parliament Act 104 of 1978 unmistakably requires that it must be established by an applicant for reception of additional evidence at the appellate stage in case that the evidence sought to be so brought on record was not within his knowledge no could it be brought on record at the stage of the trial in spite of exercise of due diligence. The mere fact that at that stage the applicant did not have knowledge about the evidence sought to be brought on record as additional evidence at the appellate stage is not enough to entitle him to pray for its reception later. Far from giving satisfactory proof of the fact that in spite of exercise of due diligence the plaintiff opposite parties has no knowledge about the deed of gift etc. at the stage of the trial of the suit, they have not even asserted that there was any exorcise of due diligence on their part in spite whereof they did not have knowledge about them or failed to adduce it at the appropriate stage in spite of exercise of due diligence by them. Quite clearly, therefore, the prayer for reception of the additional evidence made by the plaintiff apposite parties in this appeal through their application dated November 30, 1978 deserves rejection. 14. Coming now to the prayer for the amendment of the plaint made by the plaintiff opposite parties through their application dated December 1, 1978, it has to be noticed that the said prayer is entirely founded upon the additional evidence the reception whereof was prayed for through the application dated November 30, 1978. As stated in the affidavit of Ved Prakash Kohli filed in support of the amendment application the plaintiff-respondents learnt in the third week of November, 1978 that through registered gift deed dated November 18, 1971 Smt Tara Devi (the appellant) gifted building No. 36 K.P. Kakkar Road, (Zero Road), Allahabad in favour of Nagendra Narain Shukla who had accepted the gift and got his name mutated as owner of the building and having filed those papers as additional evidence in this court on November 30, 1978, the amendment of the plaint became essential. The prayer for reception of additional evidence having been refused it is clear that the prayer for amendment of the plaint deserves also to be refused. In any case, as submitted by the learned counsel for the defendant-appellant, the plaintiffs are by the proposed amendment seeking, as it were, to abandon their original case and substitute for it an entirely new case. In any case, as submitted by the learned counsel for the defendant-appellant, the plaintiffs are by the proposed amendment seeking, as it were, to abandon their original case and substitute for it an entirely new case. The suit as originally framed was on the basis that Smt. Tara Devi was the owner of the premises is dispute whereas by the proposed amendment it is sought to be pleaded that at the relevant time she was not so. The plaintiff-respondents, argues rightly the learned counsel for the appellant, have curiously enough not sought any amendment of the relief clause which continues to seek a declaration that the plaintiff-respondents are the tenants of the appellant. The submission of the learned counsel for plaintiff respondents that on account of rule 7 of Order 6 C.P.C. the alternative case sought to be set up by the plaintiffs through the proposed amendment can only be raised by them by seeking an amendment of the plaint albiet at the stage of Second Appeal is countered by the learned counsel for the appellant by submitting that what the plaintiffs were trying to do was not to set up allegations of facts in- consistent with their previous pleadings but they were attempting to abandon their earlier case and taking up an entirely new case at this stage. Such an amendment should not be permitted. I am not inclined to permit the plaintiff- respondents, at this stage, to amend the plaint and their prayer in that regard stands rejected. 15. The submission on behalf of the respondents that in Roop Chand's case (supra), the Supreme Court did not lay down that even a collusive decree would bind a sub-lessee and, therefore, the decision of the lower appellate court cannot be said to be contrary to law which may merit interference by this Court in the present Appeal, cannot be accepted. The submission on behalf of the respondents that in Roop Chand's case (supra), the Supreme Court did not lay down that even a collusive decree would bind a sub-lessee and, therefore, the decision of the lower appellate court cannot be said to be contrary to law which may merit interference by this Court in the present Appeal, cannot be accepted. True it is, as has been argued on behalf of the respondents, that in that case the Supreme Court proceeded to examine the question whether the decree under which the sub- lessee was sought to be evicted could be characterised as a collusive one and concluded that it was not so, it is clear from the observations made by the Court in paragraph 12 of the report referred to earlier, that even if the lessor obtains a decree against the lessee in a suit which is not contested by the lessee under an agreement with the lessor, without impleading the sub- lessee, such a decree would be binding upon the sub-lessee. Besides, this Court has taken the view in the case of Sahib Rai and others v. Behari Rai and others (supra) that a collusive decree is binding not upon the parties thereto but also upon their representatives. The plaintiff-respondents being, as concurrently held by the two courts below, sub-holders of Nagendra Shukla cannot but be bound by the decree for eviction passed against Shukla even though with his collusion with the appellant. In my opinion, the plaintiff- respondents cannot resist their eviction from the premises in suit on the basis that the decree in execution whereof they were being sought to be evicted, had been obtained by the appellant against Nagendra Narain Shukla in collusion with him. 16. Now remain to be considered two more submissions of the learned counsel for the plaintiff-respondents. One of these is that the failure of the trial Judge to implead Nagendra Narain Shukla resulted in prejudice to the case of the plaintiffs and that, therefore, it could not be said that the plaintiffs had a fair trial of their case. To the same effect is the submission that, in any case, the trial Judge should have permitted examination of Shukla as a witness in the case, particularly, when he was present in court and the plaintiffs actually filed an application for examining him. 17. To the same effect is the submission that, in any case, the trial Judge should have permitted examination of Shukla as a witness in the case, particularly, when he was present in court and the plaintiffs actually filed an application for examining him. 17. The questions, aforesaid, were raised by the parties before the trial court. After hearing the learned counsel for the parties at length the trial court rejected the prayer of the plaintiff-respondents in respect of both the matters. The prayer for adding Nagendra Narain Shukla as a party to the suit was refused by the trial court by a detailed order dated December 3, 1974 which, in so far as it is material, says that...... for the purpose of deciding this case only the claim of the plaintiff has to be seen vis-a-vis the claim of the defendants who are admittedly owner of the premises in question. That being so, no finding is necessary to be given as to what relationship existed between the plaintiff and one Nagendra Narain. In case there is decree against him, it is not going to affect the position of the plaintiff who has asserted his own claim for the house in suit. There can be no occasion to decide the controversy between the plaintiff and Nagendra Narain as the latter stands now where against the claim of the defendant and the plaintiffs in this case. Moreover, the defendant has given up the plea for non joinder of necessary party and now the application for amendment is infructuous. I, therefore, hold that Nagendra Narain is neither proper party nor a necessary party for deciding the claim of the plaintiff and the defendants in this case.........". On the pleadings of the parties and in view of the fact that the plea of non-joinder of a necessary party had been given up by the defendant-appellant, the view aforesaid of the trial court was fully justified. Its does not appear from the judgment of the lower appellate court that any specific grievance was made by the plaintiffs before it in respect of the order aforesaid of the trial court. 18. The prayer for examining Nagendra Narain Shukla as a court witness in the case was rejected by the trial court by its order dated March 31, 1975. 18. The prayer for examining Nagendra Narain Shukla as a court witness in the case was rejected by the trial court by its order dated March 31, 1975. In material part it said that "the learned counsel for the plaintiff has pressed the application on yet another ground that the witness is material witness as both the parties have made allegations against him and it is essential that the witness be examined so that the facts on the record be appreciated. I have considered this fact too and am unable to agree with this contention. of the learned counsel for the plaintiffs. As held earlier by me while hearing issue no 3 and application 89-A(2), the controversy as it stands between the parties has to be seen and determined in this case. Admission or otherwise of the witness Nagendra Narain Shukla is not going to affect the rights of the parties. Their contentions would be seen and judged as they stand on the record in the light of evidence adduced by them and nothing more. Both the sides have challenged the bona fide of the witness and the witness has been called by the defendant for filing the papers in his custody and nothing more. That way he is the witness of no use to both these sides. I, therefore, find no force in the plaintiffs' "Application and the same is rejected......" 19. It is undisputed that Nagendra Narain Shukla had been summoned only to produce the documents in his possession. By the mere fact that he had produced them and was present in court, he did not become a witness and could not, therefore, be cross-examined unless he was called as a witness. The trial Judge gave cogent reasons for not summoning him as a court witness. The failure of the trial court, therefore, to have summoned Nagendra Narain Shukla as a witness and to have enabled the plaintiff-respondents to have cross- examined him cannot, in the circumstances of the instant case, be said to have vitiated the trial of the suit. As observed by the Supreme Court in Vishwa Nath Rai v. Sachchidanand, AIR 1971 Supreme Court 1949 the court is justified in refusing to call a witness as a court witness where neither side summoned him to give evidence in the case. 20. As observed by the Supreme Court in Vishwa Nath Rai v. Sachchidanand, AIR 1971 Supreme Court 1949 the court is justified in refusing to call a witness as a court witness where neither side summoned him to give evidence in the case. 20. The plaintiff-respondent cannot be permitted to argue, as has been attempted by their learned counsel, that the Small Cause Court had, no jurisdiction to try suit No. 950 of 1973 or to pass a decree for eviction of Nagendra Narain Shukla therein. On the finding of the two courts below that the plaintiff-respondents are sub-holders Nagendra Narain Shukla, such a plea is not available to them. If at all, the plea to that effect could be raised by Shukla himself. 21. Coming now to the cross-objection in respect whereof the learned counsel for the parties addressed me at the further hearing of the case, it has to be noticed that it virtually contains the same pleas which were raised before me during the course of the hearing of the appeal itself. In fact, the learned counsel conceded it. The only point over which arguments were addressed was in regard to protection of the occupation of the plaintiff-respondents in the premises in suit under section 14 of U.P. Act XIII of 1972. In this regard it has to be borne in mind that prior to its amendment by section 8 of U.P. Act 28 of 1976 with effect from July 5, 1976, section 14 of U.P. Act XIII of 1972, as originally enacted, protected the possession of those tenants against whom proceedings under section 7-A of U.P. Act III of 1947 were pending. That admittedly was not the position as far as the plaintiff-respondents are concerned. Besides. as submitted by the learned counsel for the appellant, the protection of that provision would not be available to the plaintiff- respondents in view of the concurrent finding recorded by the courts below that they were sub-holders of Nagendra Narain Shukla. Further, the facts necessary to sustain a plea founded upon section 14 of U.P. Act XIII of 1972 were neither pleaded nor attempted to be established by the plaintiff- respondents at the appropriate stage. As such also their submission in this regard lacks merit. Further, the facts necessary to sustain a plea founded upon section 14 of U.P. Act XIII of 1972 were neither pleaded nor attempted to be established by the plaintiff- respondents at the appropriate stage. As such also their submission in this regard lacks merit. In conclusion, it has to be held that the suit was liable to be dismissed in its entirety and the lower appellate court erred in decreeing it in part. 22. The appeal, therefore, succeeds and is allowed. The suit is dismissed in its entirety. The cross-objection stands decided accordingly. In the circumstances of the instant case, however, the parties are left to bear their own costs in this Court.