REKHA MUKHERJEE v. ASHISH KUMAR DAS — 1984 DIGILAW 194 (CAL)

GANENDRA NARAYAN ROY, J. ( 1 ) THIS Rule is directed against Order No. 70 dated 25. 1. 84 passed by the learned Munsif, 1st Court, Alipore, in Title Suit No. 412 of 1977. By the aforesaid order, the learned Munsif has allowed an application for amendment of written statement made by the defendants-opposite parties. It appears that the said Title Suit was instituted by the plaintiff-petitioner, Mrs. Rekha Mukherjee for eviction of the predecessor-in-interest of the substituted defendant-opposite parties, Manick Chandra Das, and for mesne profits and for recovery of arrears of rent on the contention that the plaintiff was the owner of the disputed properties appertaining to premises No. 77/1, Hazra Road, within Police Station Tollygunge, in the district of 24-Parganas, and by a registered deed of lease dated 1st April, 1959 executed between the plaintiff on the one hand and the original defendant Manick Chandra on the other, the said defendant had taken tenancy of the aforesaid land fully described in the schedule to the plaint for 15 years commencing from 1st April, 1959 and ending with 31st March, 1974. It was, inter alia, 1959 to 31st March, 1967 the rent would be Rs. 210/- per month payable according to the English Calendar month and for the remaining seven years from the 1st April, 1967 to 31st March, 1974 the rent would be Rs. 250/- per month payable according to the English Calendar. The plaintiff contended that the defendant had defaulted in making payment of rent and the period of lease had expired with the efflux of time and as such the plaintiff was entitled to recover possession and to arrears of rent and manse profits. ( 2 ) THE said suit was contested by the defendant Manick Chandra Das, who had filed a written statement, inter alia, denying allegations made in the plaint and it was contended that the suit was not maintainable because the defendant was a thika tenant and the suit not having been filed under the provisions of the Thika Tenancy Act, the plaintiff was not entitled to any relief whatsoever. The defendant had stated in the written statement that ever since 1343 B. S. the defendant had been carrying on business of Motor repairing in the disputed land by raising a valuable structure at his own costs and from time to time the lease for thika tenancy was given by the landlord and although it was agreed that there would be two leases, one for eight years and another for seven years, the landlord by exercising fraud and misrepresentation had brought into existence one composite lease for fifteen years so that the Calcutta Thika Tenancy Act was not applicable in respect of the said lease for fifteen years. The defendant had contended that the stipulation for different rent for eight years and seven years would indicate that there were agreements of thika tenancy for the said periods and the amalgamation of thika tenancy for the said periods and the amalgamation of the said period in one composite lease was made by the landlord by practicing fraud and misrepresentation on the defendant. It is not necessary at this stage to refer in details to the other contentions raised in the written statement. ( 3 ) IT appears that at the instance of the defendant, a preliminary issue was raised as to whether or not the suit was maintainable. It appears that the learned Munsif had come to the finding that although the last lease was for about 15 years, the said lease was really an amalgamation of two leases for eight years and seven years and as the defendant was a Thika tenant, at the inception and has continued as a Thika tenant, the last lease for fifteen years did not alter the position and the defendant must be treated to be a Thika tenant and as such the suit for eviction was not maintainable in civil court. The plaintiff thereafter preferred an appeal against the said decision of the learned Munsif and the learned Additional District Judge in disposing of the said appeal had come to the finding that as the lease was for 15 years, the defendant could not claim any benefit under the Thika Tenancy Act because he was not a 'thika Tenant' within the definition of section 2 (5) (b) of the Calcutta Thika Tenancy Act 1949. The learned Additional District Judge had also come to the finding that the said lease was not the amalgamation of two leases as contended by the defendant but the said lease was one composite lease for 15 years. The learned Additional District Judge, however, came to the finding that although the suit was maintainable in the civil court and although the defendant was not entitled to claim any benefit as a Thika tenant in view of the said lease for 15 years, the plaintiff was not entitled to get a decree of eviction and other consequential relief's unless the validity of the lease could be determined by the court. The court of appeal below was of the view that in the absence of specific issue being framed about the validity of the lease for 15 years in view of the contention of the defendant that such lease was vitiated by fraud and misrepresentation, it was not possible to decide the suit. For the aforesaid purpose, the judgment of the trial court was set aside and the suit was sent back on remand for the purpose of determining, by the trial court, on evidence as to whether or not the allegation of the defendant that the execution of the lease by the defendant on 1st of April 1959 for 15 years was not a voluntary act on his part but the same was a result for misrepresentation fraud and/or under influence. The court of appeal below directed that in the light of the said observation a specific issue should be framed and the said question should be decided and if it is found that the allegation of the defendant was correct then the lease dated 1st April 1959 would not be binding on him because the same would be vitiated by misrepresentation and undue influence and, accordingly, the defendant would be treated as Thika tenant by holding over after the expiry of the previous lease dated 8th May 1951 with effect from 1st April 1959 by payment and acceptance of rent and in that event the instant suit in the civil court would not be maintainable. If on the other hand, the finding of the trial court after remand on the said issue to be framed by the trial court would go in favour of the plaintiff then the suit would be maintainable in the civil court and the trial court would then dispose of the suit by giving the plaintiff such relief's as the plaintiff would be entitled to. It also appears that against the said decision of the appeal court, the defendants namely the substituted heirs of Manick Chandra Das preferred an appeal before this Court but the said appeal was summarily dismissed under Order XLI, Rule 11 of the Code of Civil Procedure. It also appears that the defendants made an application under Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, on the contention that under the said provisions of Section 19, the suit had abated. The said application under Section 19 made by the defendants as rejected by the trial court and revisional application was also moved before this court whereupon Civil Order No. 9094 of 1982 arose. It appears that this Court also dismissed the said revisional application under Section 115 of the Code of Civil Procedure made by the defendants on the ground that suit was not instituted under the Calcutta Thika Tenancy Act 1949 and as such there was no occasion for abatement of the suit under the provisions of Section 19 of the Calcutta Thika Tenancy Act. In disposing of the said revisional application, this court has also considered the finding made by the court of appeal below in sending the suit back on remand before the trial court. After the said suit had been sent back on remand before the trial court, the defendants made an application for amendment of written statement. Such application of the defendants for amendment under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure has been annexed to this revisional application being Annexure 'e'. After the said suit had been sent back on remand before the trial court, the defendants made an application for amendment of written statement. Such application of the defendants for amendment under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure has been annexed to this revisional application being Annexure 'e'. It has been stated in the said amendment, application that by virtue of amendment of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, certain rights have been conferred upon the thika tenants and the jurisdiction of the court has been taken away and the defendants are therefore entitled to get the benefits of the amended provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and also the provisions of the Calcutta Thika Tenancy Act, 1949 before such amendment and the defendants are entitled to claim as thika tenant sand "in order to avoid all the shorts of controversy and for the purpose of fair adjudication of the dispute between the parties, certain facts are to be incorporated in the written statement by way of amendment of the written statement or by filing additional written statement. " A schedule of the proposed amendment and/or the additional written statement has been given in the said application for amendment and the said schedule of amendment is set out hereunder for the purpose of appreciating the contentions made by the respective parties at the hearing of this revisional application. "schedule of amendment" (a) That after paragraph 6 of the written statement another paragraph is to be incorporated to the following words :-"that the suit is also hit by section 31 of the Calcutta Thika Tenancy Act 1949 as amended by West Bengal Act VI of 1953 XXIV of 1959 VI of 1964 XXVIII of 1969 and XXIX of 1969. (v) That in between paragraph 9 and 10 of written statement the amended paragraph 9 (a) of the written statement the following statement to be incorporated: -that the defendants further state that admittedly the predecessors of the defendants late Manick Chandra Das was inducted in the part of the suit property and raised structure, therein at his own cost and he was inducted therein as a thika tenant by Sashi Kumar Banerjee and it will appear from the lease dated 12. 6. 1939 and 5. 4. 6. 1939 and 5. 4. 1946 that a thika tenancy was granted and the subsequent lease dated 15. 7. 51 and registered on 23. 7. 51 also will speak about the right of the original defendant late Manick Chandra Das he was a thika tenant and the present defendants being the heirs and legal representatives of late Manick Chandra Das stepped into his shoes and the right of Thika Tenancy had never been extinguished nor cannot be extinguished and /or can be taken away by any other lease without payment of any compensation to the defendants raised by them at their own cost. It is further to be stated that neither the father of the plaintiff nor the plaintiff herself did ever pay any compensation for the structures raised by the defendants and their predecessor on the suit land and even if it is held that the lease between the plaintiff and late Manick Chandra Das dated 1. 4. 59 was not obtained by practicing fraud upon Manick Chandra Das since deceased and/or by misrepresentation even then the said lease is void ab initio and made in contravention of and inconsistent with the provisions of the Calcutta Thika Tenancy Act amended in 1969 and the said lease cannot be acted upon and had never been acted upon as such there cannot be any determination of the lease. (c) That in the amended 9 (a) of the written statement the following statements are to be incorporated:-that the defendants further state that because of non-compliance of the provisions of Calcutta Thika Tenancy Act the defendants are still a Thika tenant and the current lease of 1959 being a lease for a period of fifteen years under the recent amended Act No. XXXVII of 1981 of the Calcutta Thika Tenancy Act 1981 the defendants have been given a permanent non-ejectable right in the suit property and the suit cannot be governed under the provision of T. P. Act and this Court has no jurisdiction to entertain the suit. " ( 4 ) BY the impugned order No. 70 dated 25th January, 1984 the learned Munsif has allowed the said prayer for amendment of the written statement and/or the additional written statement despite objections made by the plaintiff. " ( 4 ) BY the impugned order No. 70 dated 25th January, 1984 the learned Munsif has allowed the said prayer for amendment of the written statement and/or the additional written statement despite objections made by the plaintiff. The learned Munsif has come to the finding that the defendants in the original written statement had taken the plea of thika tenancy and the present amendment of the written statement is not the introduction of any new defence other than what has been taken earlier. The learned Munsif has also come to the finding that the proposed amendment is nothing but addition and repetition of the same recital and the said amendment will not change the nature and character of the original written statement and the defence of the defendants. In that view of the matter, the prayer for amendment of the written statement has been allowed by the learned Munsif. ( 5 ) AS aforesaid, the said order is under challenge in the instant revisional application made by the plaintiff petitioner. Mr. Mitra, the learned Counsel appearing for the petitioner, had contended that the defendants had contended that their predecessor Manick Ch. Das was thika tenant from the very inception of the tenancy and he had been continuing as a thika tenant all along and as such the defendants were entitled to all the benefits under the Calcutta Thika Tenancy Act as amended from time to time and the suit was not maintainable in its present form. The defendants had also contended that the last lease for 15 years commencing from 1st April 1959 was brought into existence by fraud or misrepresentation and/or undue influence and the said lease was in substance an amalgamation of two leases for two different periods of 8 years and 7 years. Accordingly, the defendants who were thika tenants at the beginning, continued to remain as thika tenants. As aforesaid, the trial court had accepted the said contention of the defendants that the said lease was as amalgamation of 2 leases and as such the defendant, who were thika tenants continued to be thika tenants and the suit was not, therefore, maintainable. Accordingly, the defendants who were thika tenants at the beginning, continued to remain as thika tenants. As aforesaid, the trial court had accepted the said contention of the defendants that the said lease was as amalgamation of 2 leases and as such the defendant, who were thika tenants continued to be thika tenants and the suit was not, therefore, maintainable. The appeal court, however, reversed the said finding of the trial court and categorically came to the finding that the said lease one composite lease for 15 year; and whatever might be the status of the original defendants at the inception of the tenancy, in view of the said lease of 15 years executed between the parties, the defendant was not entitled to claim any benefit as a thika tenant. The court of appeal below, however, came to the finding that since the defendant had contended the lease was the outcome of fraud, misrepresentation and/or undue influence, as pleaded by the defendant, it was necessary to decide the said contention for the purpose of the validity of the said lease and if on such consideration the trial court would come to the finding that the lease was vitiated by fraud, misrepresentation or undue influence, then the said lease for 15 years would be of no consequence and the defendants would, therefore remain a thika tenant but if, however, the trial court would come to the finding that the said lease was valid lease and not vitiated by fraud, misrepresentation or undue influence, then the suit was maintainable and the plaintiff would be entitled to proper relief's. Mr. Mitra has, therefore, contended that in view of such finding made by the court of appeal below, the defendants can no longer contend that their predecessor was a thika tenant and despite such lease they still continue as thika tenants and are therefore entitled to all the protections given to thika tenants under the Calcutta Thika Tenancy Act as amended from time to time. Mr. Mitra has contended that in terms of the order of remand of the court of appeal below, the trial court is required to consider only as to whether or not the said deed of lease for 15 years, admittedly executed between the parties is a valid lease or not. Mr. Mr. Mitra has contended that in terms of the order of remand of the court of appeal below, the trial court is required to consider only as to whether or not the said deed of lease for 15 years, admittedly executed between the parties is a valid lease or not. Mr. Mitra has contended that by the proposed amendment, the defendants are trying to circumvent the finding already made against the defendants by the court of appeal below that on the face of the said lease deed, the defendants were not entitled to be treated as thika tenants. Mr. Mitra has contended that the entire purpose of the proposed amendment of the written statement is to establish that the defendants are thika tenants irrespective of the said lease deed but the defendants cannot be permitted to contend that the defendants are thika tenants even if the said lease is a valid document. Mr. Mitra has contended that the original defendant had already contended that he was a thika tenant at the beginning and he had been continuing to be thika tenant and the court of appeal below has held that if the said lease for 15 years is held invalid by the trial court then only the defendants will be entitled to claim as thika tenant and the instant suit must fail. Mr. Mitra has contended that the purpose of the proposed amendment of the written statement is not for elucidation of the contentions required to be decided by the trial court but the application for amendment has been made for an attempt to raise the plea of thika tenancy once more although such plea has been negatived by the court of appeal below. Mr. Mitra has contended that no amendment should be allowed to get over the judgment passed by the court of appeal below against the defendants and for this contention Mr. Mitra has referred to a full Bench decision of Andhra Pradesh High Court made in the case of (1) Md. Jafar Ali v. S. Rajeswar Rao reported in AIR 1971 A. P. 76. Mr. Mitra has also referred to a Supreme Court decision made in the case of (2) Mohanlal v. Anandi Bai reported in AIR 1971 SC 2177 . Mitra has referred to a full Bench decision of Andhra Pradesh High Court made in the case of (1) Md. Jafar Ali v. S. Rajeswar Rao reported in AIR 1971 A. P. 76. Mr. Mitra has also referred to a Supreme Court decision made in the case of (2) Mohanlal v. Anandi Bai reported in AIR 1971 SC 2177 . It has been held in the said decision that the amendment which would be allowed must relate to and be consequential to the plea directed to be considered. Mr. Mitra has contended that the court of appeal below has since directed the trial court to consider the question as to whether or not the lease for 15 years is vitiated by fraud, misrepresentation or undue influence. After remand, the said question only is required to be decided by the trial court in terms of the order of remand by the court of appeal below. The proposed amendment does not relate or the same is not consequential to the plea directed to be considered but the proposed amendment is nothing but an attempt to reagitate the question that the defendants are governed by the Thika Tenancy Act and that they are thika tenants entitled to the benefits of the old law and also the amended Thika Tenancy Act. Mr. Mitra has also referred to a decision of the Full Bench of the High Court at Send made in the case of (3) Khanu Chuhar v. Panjal Shah reported in AIR 1933 Send 279. The Full Bench had held in the said decision that the court of appeal was in error in allowing the application for amendment of the pleadings and in permitting the plaintiff to agitate the same questions and lead further evidence by resorting to the device of asking for amendment of the pleadings. The Full Bench has held that such amendment to allow the plaintiff to reagitate the same question was of a gross abuse of the process of the court and amendment should not have been allowed. Mr. The Full Bench has held that such amendment to allow the plaintiff to reagitate the same question was of a gross abuse of the process of the court and amendment should not have been allowed. Mr. Mitra has submitted that in the instant case, by allowing the said application for amendment in favour of the defendants, the learned Judge has in fact allowed the defendants to agitate the same question regarding their rights as thika tenant dehors the said lease for 15 years although such contention was not accepted by the court of appeal below and a specific finding against the defendants had been made and the suit was sent back on remand only for the purpose of adjudication as to whether or not the lease deed for 15 years is vitiated. Mr. Mitra has submitted that the defendant has admitted that the said lease for 15 years was executed between the parties and the same was acted upon but by the proposed amendment such admitted position was sought to be negatived. Accordingly, the learned Judge should not have allowed the said amendment. In support of this contention Mr. Mitra has referred to a decision of the Supreme Court made in the case of (4) M/s. Modi Spinning and Weaving Ltd. v. M/s. Lodah Ram and Co. reported in AIR 1977 SC 680 . It has been held in the said decision that amendment introducing entirely different and new case deviating from the admission made by the defendant and new case deviating from the admission made by the defendant in the written statement is not permissible. Mr. Mitra has also referred to Bench decision of this Court made in the case of (5) Bhuramal Agarwalla v. Samla Daluband Coal Co. reported in 1977 (2) Calcutta Law Journal 310. It has been held in the said decision that a defendant will not be permitted to carefully change his defence by an amendment of his written statement. Original admission cannot be negatived by resort to an amendment of the written statement. Mr. reported in 1977 (2) Calcutta Law Journal 310. It has been held in the said decision that a defendant will not be permitted to carefully change his defence by an amendment of his written statement. Original admission cannot be negatived by resort to an amendment of the written statement. Mr. Mitra has contended that the original defendant has specifically admitted in his written statement that the said lease deed was executed between the parties and was acted upon and as such the court should not allow the defendants to change such admission on the basis of which the parties had gone to trial and the appeal was decided by the court of appeal below and the suit was sent back on remand for adjudication of a specific issue only. Mr. Mitra has contended that the learned Judge did not advert to the necessity of amendment of the written statement in the context of order of remand passed by the court of appeal below but on total non-application of mind to the facts and circumstances of the case and the scope of adjudication after the order of remand, the impugned order for amendment of written statement has been made by the learned trial Judge. Mr. Mitra, has, therefore, submitted that such amendment has resulted in a serious failure of justice and the amendment has been allowed by the learned Judge illegally and with material irregularity in the exercise of his jurisdiction and the said order must be set aside by this Court. ( 6 ) MR. Roy Chowdhury, the learned Counsel appearing for the defendants-opposite parties, has, however, submitted that although the court of appeal below has held that the said lease is a composite lease for 15 years and as the period of said lease was for 15 years, the defendant even though he was a thika tenant at the beginning is not entitled to claim as a thika tenant, it cannot be held that the defendants cannot plead their right as thika tenants because of the subsequent change in the legislation. He has submitted that the Thika Tenancy Act has undergone change by subsequent amendments and the provisions of Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981 have not been taken into consideration either by the appeal court or by the trial court and the defendants can successfully contend before the court below that in view of the said provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981, the defendants are entitled to protection from eviction. Mr. Roy Chowdhury has contended that the proposed amendment has been made for elucidating certain facts for the purpose of deciding the stand taken by the defendant that the defendants are protected under the provisions of the said new Act. He has also contended that it is precisely for the elucidation of the contentions relating to undue influence, fraud or misrepresentation in bringing about the said deed of lease for 15 years between the parties, the proposed amendment of the written statement is necessary and the learned trial Judge is right in his observation that no new facts are being introduced and the said proposed amendment is not changing the real nature and character of the suit. Mr. Roy Chowdhury has also contended that the decision of the court of appeal below will not operate as a res-judicata if the defendants can get benefit under the subsequent legislation of 1981, as referred to hereinbefore. In this contention, Mr. Roy Chowdhury has referred to a decision of this court made in the case of (6) Sri Iswar Jagannath Deb Jew v. Fatik Chandra Seal, reported in AIR 1972 Cal 372 . It has been held in the said decision that the written statement if amended to elucidate fact already in the pleadings and to formulate new questions of law, then the said amendment is quite justified. Mr. Roy Chowdhury has also referred to another decision of this Court made in the case of (7) Nrisingha Prosad Paul v. Steel Products Ltd. , AIR 1953 Cal. 15 . It has been held in the said decision that amendment of plaint and amendment of written statement are not necessarily governed by exactly the same principles. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as substituting a new cause of action by amending the plaint. Mr. 15 . It has been held in the said decision that amendment of plaint and amendment of written statement are not necessarily governed by exactly the same principles. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as substituting a new cause of action by amending the plaint. Mr. Roy Chowdhury has contended that the court has always been liberal in allowing the amendment of written statement more so, when such amendment is for all practical purpose an elucidation of the case already made and/or for formulation of the new point of law. In this connection, Mr. Roy Chowdhury has referred to a decision of the Supreme Court made in the case of (8) Panchdeo Narain Srivastava v. Km Jyoti Sahay reported in AIR 1983 SC 462 . It has been held in the said decision that an admission made by the parties may be withdrawn or may be explained away. Therefore, it cannot be said that admission of fact cannot be withdrawn. Mr. Roy Chowdhury has contended that even assuming that be the proposed amendment of the written statement, the defendants are trying to retract the admission that the said lease deed had been acted upon, as alleged by the plaintiff, it cannot be contended that the defendants are not permitted to withdraw such admission in an appropriate case. In this connection, Mr. Roy Chowdhury has referred to a decision made by the Supreme Court in the case of (9) Haridas Alida thadani v. Godrej Rustomji Kermani in 1984 (1) SCC 668 . It has been held in the said decision that the court should be extremely liberal in granting amendment of pleadings unless serious injustice or irrepairable loss is caused to other parties by such amendment. The Supreme Court has also observed in the said decision that if the learned Judge has properly exercised his discretion and has allowed the amendment, the High Court in the revisional jurisdiction should not lightly interfere with such discretion exercised by the trial Judge. Mr. Roy Chowdhury has submitted that if the defendants are entitled to take the benefit of any legal provision, there can not be any occasion for the court to shut out the defendants from pleading such legal provisions. Mr. Roy Chowdhury has submitted that if the defendants are entitled to take the benefit of any legal provision, there can not be any occasion for the court to shut out the defendants from pleading such legal provisions. He has also contended that for the purpose of formulation of new point of law, the amendment of pleadings is necessary and is also justified and in the instant case and the defendants have proposed to make amendment of the written statement precisely for the said purpose. He has contended that the learned trial Judge has specifically come to the finding that no new case is being introduced by the proposed amendment and, accordingly, the learned trial Judge has exercised his discretion in allowing the amendment and such amendment, therefore, should not be interfered with by this court in the revisional jurisdiction. Mr. Roychowdhury has also submitted that in any event, the defendants must be allowed to lead evidence for the purpose of showing that the said deed of lease is vitiated by fraud, misrepresentation or undue influence and the defendants should also be permitted to lead evidence to show that because of a subsequence change in the legislation the defendants are entitled to claim protection under the changed legislation. ( 7 ) IN reply to the said contention of Mr. Roychowdhury Mr. Mitra has submitted that in the instant case, the defendants have not given any explanation as to why the earlier admission about the said lease for 15 years which had been acted upon is sought to be retracted and the learned Judge has also not considered the reasonableness for withdrawal of such admission. Accordingly, Mr. Mitra has contended that the decision of the Supreme Court in Panchdeo's case ( AIR 1983 SC 462 ) has no manner of application. He has also submitted that the court will also not allow immaterial and useless amendment to set up a claim which is not tenable in law. It has been already held by the court of appeal below that on the basis of the lease of 15 years, the defendants cannot claim a thika tenancy right. Accordingly, the Thika Tenancy Act or any subsequent amendment of the same cannot come in aid of the defendants. Hence, for the purpose of getting benefit of the new legislation or change in the legislation, the amendment is not at all necessary. Accordingly, the Thika Tenancy Act or any subsequent amendment of the same cannot come in aid of the defendants. Hence, for the purpose of getting benefit of the new legislation or change in the legislation, the amendment is not at all necessary. For this contention, he has referred to the comments made under the heading :amendments not allowed" at page 130 of Precedents of Pleadings by Bullen and Leake (12th Edn.) referring to the English decision made in the case of Central Queensland Meat Co. v. Gallop, reported in (1892) 8 TLR 220 and the decision made in the case of Machado v. Fortes, (1897)2 Q B. 231 (C. A. ). It has been observed in the said treatise that the court will refuse immaterial and useless amendments or merely trivial or technical amendments. Similarly, an amendment which if made would set up a claim or defence which is bad in law, will not be allowed, Mr. Mitra has, therefore, submitted that the impugned order is manifestly unjust and improper and interference in the revision is called for. ( 8 ) AFTER considering the respective submissions made by the learned counsels for the parties, it appears to me that if for the effective adjudication of the real dispute involved in a lis, amendment of pleadings is necessary, the court should not debar a party from effecting such amendment and unless a serious injustice is caused to the other side for bringing an amendment of pleadings or the real character of the suit is completely changed, the court should normally allow such amendment. The Supreme Court in Haridas Alidas Case ( 1984 (1) SCC 668 ) has observed that the court should be extremely liberal in granting amendment of pleadings unless serious injustice or irreparable loss is caused. Mr. Roy Chowdhury is also correct in his submission that if on proper consideration of the facts of the case the learned Judge has exercised his discretion in allowing an amendment, this court in exercising revisional jurisdiction should not lightly interfere with such discretion exercised by the learned trial Judge. Mr. Roy Chowdhury is also correct in his submission that if on proper consideration of the facts of the case the learned Judge has exercised his discretion in allowing an amendment, this court in exercising revisional jurisdiction should not lightly interfere with such discretion exercised by the learned trial Judge. There is no manner of doubt that the court should ensure that mere technically should not stand in the way of dispensing justice in a case and if for want of proper amendment, a party is unreasonably shut out from bringing his case for adjudication, the court should ensure that mere technically should not stand in the way of dispensing justice in a case and if for want of proper amendment, a party is unreasonably shut out from bringing his case for adjudication, the court should se that a party is allowed to make effective amendment so that his case is brought home, and the other party is not allowed to steal a march because of the mistake or omission in the earlier pleadings of the party. But at the same time, the court should not overlook the fact that the purpose of amendment is not to introduce a completely new fact on which the parties did not to introduce a completely new fact on which the parties did not go for trial and the nature and character of the suit is likely to be changed effectively by introduction of the new pleadings at the belated stage. There is no manner of doubt that an admission made by the party in the pleadings may be withdrawn by effecting amendment if proper explanation is given for such withdrawal of earlier admission. In such circumstances, it is necessary and also desirable that the court should consider the reasonableness of the withdrawal of earlier admission. In the amendment application, however, there is no indication as to why the earlier admission about giving effect to the said lease for 15 years is sought to be withdrawn and the learned Judge has also made no finding to that effect. It appears to me that by the proposed amendment, the defendants are trying to reagitate the question about the tenancy of the defendants being governed under the Thika Tenancy Act de hors the said lease for 15 years. It appears to me that by the proposed amendment, the defendants are trying to reagitate the question about the tenancy of the defendants being governed under the Thika Tenancy Act de hors the said lease for 15 years. Such contention has not been accepted by the court of appeal below and the said finding remains a concluded finding of fact and the defendants were also unsuccessful in their attempt finding a fact and the defendants were also unsuccessful in their attempt to challenge the said judgment of the court of appeal below before this Court because the Second Appeal preferred before this Court was summarily dismissed under Order XLI Rule 11 of the Civil Procedure Code. There is no manner of doubt that the defendants will be entitled to get the benefits of Thika Tenancy if the said lease for 15 years is held invalid. The court of appeal below had clearly indicated in its judgment that if the trial court comes to the finding that the said lease is invalid, then the defendants must be treated as Thika Tenants but the defendants should not be permitted to circumvent the finding made by the court of appeal below by incorporating amendments for reagitating the question that de hors the said lease for 15 years, that the defendants are still thika tenants. If for any change in the legislations, the defendants are entitled to plead such thika tenancy right irrespective of the said deed of lease for 15 years the defendants can certainly argue on such change in legislation and for arguing a point of law, the amendment of pleadings is not called for. ( 9 ) IN the aforesaid circumstances, the impugned order cannot be sustained in law and it appears that the learned Munsif has passed the said order without considering the facts and circumstances of the case in their proper perspective and there has been material irregularity in the exercise of jurisdiction by the learned Munsif in allowing the said amendment. In the circumstances, the impugned order is set aside and this Rule is made absolute. Let this order and the records of the case be sent down as early as possible by Special Messenger at the cost of the petitioner, as prayed for.