Bhola Nath v. Mohammad Ibrahim — 1986 DIGILAW 730 (ALL)

Judgment A.P. Misra, J. 1. THE appellant in the present Second Appeal has moved two applications : one under Order 6 Rule 17 CPC for the amendment of the written statement and the other under Order 41 Rule 27 for admitting two documents as additional evidence in this case. By means of this order these two applications are being disposed of. 2. THE present Second Appeal arises out of a suit for ejectment, recovery of arrears of rent and damages for use and occupation filed by respondents on the allegations that they are owners of the shop in suit of which the appellant is tenant at the rate of Rs. 22.50 paise per month. THE defendant has not paid the rent since 1st January, 1965. THE suit was filed mainly on two grounds namely (1) on the ground of default in payment of rent and (2) on material alterations. THE appellant contested the suit on the grounds that the tenancy is annually and not monthly and that the rent is Rs. 270/- per annum. In fact, for some time the plaintiffs used to take clothes etc. and on account of that, adjustment in the rent was done. In August, 1967 defendant fell ill seriously and has been taken out for treatment to Allahabad and he remained out of station till 1968 and the shop in suit remained closed. It was further pleaded that no notice was received or refused by him. He also denied the material alterations as alleged in the plaint. The trial court decreed the suit and the same decree was also confirmed by the first appellate court. It is against that decree the aforesaid Second Appeal has been filed in this Court. The reasons for amendment of the written statement and adducing additional evidence are common though they have been mentioned in separate applications. According to the appellant, on 16th July, 1984 through one Basir Ahmad he came to know that the shop in suit was a Waqf property and the plaintiffs were not the owner of the same. In pursuance to that knowledge the appellant went to Lucknow on 17th July, 1984 and after enquiry in the U. P. Waqf Board came to know that the shop in suit is Waqf property and is registered with the Central Sunni Waqf Board. In pursuance to that knowledge the appellant went to Lucknow on 17th July, 1984 and after enquiry in the U. P. Waqf Board came to know that the shop in suit is Waqf property and is registered with the Central Sunni Waqf Board. Thereafter he applied on 19th July, 1984 for the certified copy of the Waqf deed which he received on 29th July, 1984. As per aforesaid documents the Waqf was created by Smt. Batool Bibi by means of a registered deed of Waqf dated 15th August, 1918 which was registered on 3rd September, 1918. At the time of the registration Sri Kurban Ali was the first Mutwalli who was the husband of Smt. Batool Bibi and after his death it was stipulated therein that his descendants would be appointed as Mutwallis. It is also the case of the applicant that the appellant's grand father Ram Lai was tenant since before 1918 in the same shop and after his death the tenancy was inherited by Govind Prasad the father of the present appellant. After the death of his father, the appellant having no knowledge of the existence of the Waqf had been paying the rent to the plaintiffs treating them as the owners/landlords of the shop in suit. It has also been stated that the tenancy of the appellant has started about 100 years ago and at the time of the creation of the Waqf the aforesaid Kurban Ali was realising the rent. At no time either Kurban Ali or his descendants ever communicated to the appellant or his predecessor that the property is Waqf property. According to the applicant, income, out of the suit property was being appropriated by the plaintiffs and their predecessor for their own use and they never treated the said property as Waqf property. On these facts it is alleged that since the very basis of filing of the suit by the plaintiffs for the eviction of the appellant disappears on account of the aforesaid knowledge, it is necessary in the interest of justice to permit the amendment of the written statement and also for receiving the additional evidence as aforesaid. The applicant thus sought for admission of the certified copy of the Waqf deed and photostat copy of the register of the Waqf (Serial No. 18) in this case. The applicant thus sought for admission of the certified copy of the Waqf deed and photostat copy of the register of the Waqf (Serial No. 18) in this case. Similarly in consonance of the said knowledge also sought for amendment in the written statement as stated in para 11-A to para 11-C in the application. 3. SRI G. P. Bhargava, learned counsel for the applicant vehemently urged on the basis of the aforesaid averments that since the revealing of the new fact goes at the root of the matter and the knowledge has been very recent in the interest of justice, it is a fit case in which both the amendment of the written statement under Order 6 Rule 17 CPC and also the admission of the additional evidence under Order 41, Rule 27, should be permitted by the Court. On the other hand, the contention has been raised on behalf of the respondents that the amendment sought by the appellant is belated as being made after, the expiry of 20 years from the date of the filing of the suit and even the knowledge alleged, is vague, not worthy of reliance and further there had been no controversy in the suit either of ownership or relationship as landlord and tenant and there being no such issue between the parties, thus it would not be a fit case for the exercise of powers under Order 6 Rule 17 CPC. It was further urged that this is a case in which admittedly the appellant and his predecessor continued as a tenant for long number of years and in fact, there has been a fresh deed of agreement between the present appellant and the plaintiffs and the appellant continued on account of the said agreement, thus he could not wriggle out the relationship admitted by him by means of a fresh rent deed. In view of that position under Section 116 of the Indian Evidence Act, the principles of estoppel applies. 4. THE main thrust of argument by Sri Rajeshwari Prasad, learned counsel for the plaintiff-respondents against the proposed amendment was that by it appellant was denying the title of the lessor (respondent) which in view of Section 116 of the Indian Evidence Act is not permissible. 4. THE main thrust of argument by Sri Rajeshwari Prasad, learned counsel for the plaintiff-respondents against the proposed amendment was that by it appellant was denying the title of the lessor (respondent) which in view of Section 116 of the Indian Evidence Act is not permissible. He urged a tenant under it is estopped from challenging the title of the lessor from whom he was inducted in possession and thus he should not be permitted to raise such plea by means of an amendment. It was also urged that since the appellant and his predecessors were inducted in tenancy initially by the predecessors of the respondents even before the alleged Waqf was created and even subsequently on account of fresh rent deed being executed on 3rd July, 1960 (Ext. 56) between the respondent and the appellant, he cannot be permitted to deny his title. The principles under Section 116 of the Indian Evidence Act are well settled. It stipulates that no tenant of person claiming through him during the continuance of tenancy be permitted to deny the title of such landlord who has inducted him in the tenancy. The question is whether on the facts and circumstances of this case Section 116 of the Evidence Act applies or not. Learned counsel for respondents firstly relied on the case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Coner Ltd., AIR 1937 PC 251. This case holds Section 116 does not deal with all types of estoppel which may arise between landlord and tenant. It postulates continuance of tenancy and with a beginning at a given date from a given landlord. It further held neither a tenant nor any one claiming through him shall be heard to deny that such landlord had no title to the property. It postulates continuance of tenancy and with a beginning at a given date from a given landlord. It further held neither a tenant nor any one claiming through him shall be heard to deny that such landlord had no title to the property. For ready reference Section 116 of the Indian Evidence Act is quoted below : " Estoppel of tenant and of licensee of person in possession :-No tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy a title to such immovable property, and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had title to such property at the time when such license was given ". The estoppel as referred in the section which binds the tenant and his successor is the denying of the title of the landlord at the beginning of the tenancy. Relevant passage of Kumar Krishna Prosad Lal Singha Deo's case (supra) relied by the respondents is quoted below : " Section 116, Evidence Act, does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. This section applies against the lessee, any assignee of the term, any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. This section applies against the lessee, any assignee of the term, any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel e.g. by attornment, acceptance of rent etc. In this sense it is true enough that the principle only applies to the title of the landlord who " let the tenant in " as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title or the original lessor has since come to an end ", However, the last few lines of the aforesaid case is very significant where it was laid down that it does not prevent a tenant from pleading the title of the original lessor has since come to an and. Next reliance was placed on the case of Jaikaran Singh v. Sita Ram Agarwal, AIR 1974 Patna 364. Relevant portion is quoted below :- " An estoppel by what is known as estoppel by an entry into possession is one of such cases and its principle is engrafted in Section 108 (a) of the Transfer of Property Act. A tenant who has been let into possession by the landlord cannot deny his landlord's title so long as he has not openly restored possession to the landlord. Until such restoration or surrender of possession the tenant will be estopped even from contending that the landlord had ceased to have title subsequent to the commencement of the tenancy, though Section 116, Evidence Act would not, in terms apply to such a case ". 5. NO doubt this authority has gone beyond the scope of Section 116 by stating that a tenant is estopped even from contending that the landlord ceased to have title subsequently. This authority did not take into consideration the words " at the beginning of the tenancy " referred in Section 116. With respect, therefore, I am not following this authority. NO doubt this authority has gone beyond the scope of Section 116 by stating that a tenant is estopped even from contending that the landlord ceased to have title subsequently. This authority did not take into consideration the words " at the beginning of the tenancy " referred in Section 116. With respect, therefore, I am not following this authority. Further since a Division Bench of our Court has taken a different view which I shall be referring later, I am following the same. 6. IT is true that the principle of estoppel is based on general principle of justice, equity and good conscience. But the said principle is to be applied to the cases covered by Section 116. When Section 116 clearly refers to the words ' at the beginning of the tenancy then estoppel of all types under this section has to be confined to cases where denial of such title is of a time when such a tenant was inducted into the tenancy. This cannot be extended to a case where subsequently the lessor/landlord lost his right either by sale, transfer or otherwise, under the law. Thus this principle does not preclude a tenant to deny the original lessor's right if, in fact, he looses his right subsequently. The principles of law of estoppel is that no party should be permitted to deny the title of his lessor/landlord subsequently if he himself derives right on account of such lessor/landlord admitting him to the tenancy. But it has to be kept in mind that this principle is applicable only where such denial is at the point of time of beginning of such tenancy. In the aforesaid Jaikaran Singh's case (supra) the significant words ' at the beginning of tenancy ' have not been considered. Next, reliance was placed on the case of India Electric Works Ltd. v. B. S. Manrosh, AIR 1956 Cal. 148 . This authority also very clearly lays down in para 22 that the estoppel as contemplated by Section 116 is confined to the time when the tenancy commenced, and a tenant can always plead that the landlord who had originally the title to the property had lost such title by any act of his or by operation of any law. Reliance was also placed on the case of Mst. Reliance was also placed on the case of Mst. Hirabai v. Jiwan Lal Palode, AIR 1955 Nagpur 234, This case also does not help the respondents. In this case it is held that Section 116 is not exhaustive of the rule of estoppel governing a landlord and a tenant. Even though Section 116 is not exhaustive but it cannot be interpreted against the provisions of Section 116 of the Indian Evidence Act. As I have expressed above significance has to be tagged to the words ' at the beginning of such tenancy '. There is no indication in the section nor it precludes a tenant from taking the defence that subsequently the original lessor/ landlord has lost his title. Learned counsel for the appellant on the other hand, relied on the case of Rev. Luckman Chaplain v. Pearey Lal, AIR 1939 Alld. 670. In this case it has been held that : " Where the tenant's denial of his landlord's title is related to facts which have happened subsequent to the commencement of the tenancy, the bar of estoppel does not come into operation and it is open to the tenant to plead that the title of the landlord has passed to the Government so that he has no right to realise any rent ". Similarly in the case of Ganpat Rai v. Multan, AIR 1916 Alld. 121 a Division Bench of this Court has held by interpreting Section 116 that the tenant cannot deny landlord's title at the commencement of tenancy though he can prove that landlord's estate has subsequently come to end. Relevant passage is quoted here in under :- " Where once a person is the tenant of another person he cannot be allowed to deny that the person whose tenant he was, was the owner when the tenancy was created. He can no doubt admit that his landlord was the owner at the commencement of the tenancy and allege and prove by evidence that the landlord's estate has subsequently come to an end ; but he cannot deny that at the commencement of the tenancy the person with whom he entered into the contract was the owner of the property. He can no doubt admit that his landlord was the owner at the commencement of the tenancy and allege and prove by evidence that the landlord's estate has subsequently come to an end ; but he cannot deny that at the commencement of the tenancy the person with whom he entered into the contract was the owner of the property. The words " at the beginning of the tenancy " are expressly inserted in Section 116 to show that the tenant is not prevented from showing that after the tenancy commenced the estate of the landlord devolved on some other person. " To the same effect is also the decision of Madan Lal v. Mt. Gurdassi, AIR 1928 Alld. 650. Relevant para is quoted below : " Section 116 only provides that the tenant cannot deny that the landlord at the beginning of the tenancy, had a title to the property or that he had a right to let the property. He cannot, however, be prevented from showing that the landlord had only a life interest and that on his death the property devolved on someone else ". To the same effect was the case of Mahendra Nath Sardar v. Mahendra Nath Haldar, AIR 1948 Cal. 141. Here also it is held that it is open to the tenant to show that subsequently landlord's title has come to an end. 7. FROM the aforesaid decision it is clear that the principle of estoppel is applicable to a case where denial is made by a tenant of his landlord's title at the point of time when he was inducted into his tenancy. It does not apply to a case where subsequently the landlord lost his title or new right has been created in some one else. The authorities of our Court are very clear on this point and I have no hesitation to hold that the principles of estoppel cannot be extended to deny a tenant's defence that the landlord's title has since come to an end. 8. BEFORE applying the aforesaid principles it is necessary to revert to the fact of the present case. Admittedly the case of the parties is that the predecessors of the plaintiffs were the landlords who inducted the predecessor of the defendant-appellant in tenancy of the disputed shop. 8. BEFORE applying the aforesaid principles it is necessary to revert to the fact of the present case. Admittedly the case of the parties is that the predecessors of the plaintiffs were the landlords who inducted the predecessor of the defendant-appellant in tenancy of the disputed shop. Since more than 100 years that is to say even from before the alleged Waqf, which is alleged to have been created in the year 1918, this tenancy continued. Thus it is admitted case that before creation of Waqf the predecessors of the defendant-appellant were inducted into tenancy by the predecessors of the plaintiff-respondents. It is also significant to refer here the case of Kumar Krishna Prasad Lal Singha Deo, AIR 1937 PC 251. In that case also it has been held that the tenancy does not become a fresh tenancy every time the interest of the tenant or, of the landlord devolves by succession. Relevant portion is quoted here in under :- "The tenancy under Section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment ". Thus it can be said that the defendant-appellant in the present case cannot deny the title of the predecessor of the plaintiff who has inducted his predecessor into tenancy howsoever defective it may be. But if subsequently the right of the original lessor ceased and a fresh right was created in favour of the Waqf Board by creation of the alleged Waqf in the year 1918, then such tenant is not precluded from taking a defence that subsequently the original lessor's right has come to an end. It is not in dispute in the present case by the parties at this stage of the amendment of written statement that the Waqf was created in 1918 which included the disputed property and the property vested in favour of Waqf Board and the original lessor cased to have any right. The argument of the learned counsel for the plaintiffs-respondents was that a tenant is estopped from denying the title in view of section 116 of the Evidence Act. The argument of the learned counsel for the plaintiffs-respondents was that a tenant is estopped from denying the title in view of section 116 of the Evidence Act. I have also held above that section 116 of the Evidence Act only applies to a case where denial of title is made by a tenant at the beginning of the tenancy and does not apply to a case where subsequently the original lessor loses his title or ceased to hold the property. Learned counsel for the plaintiff-respondents further urged that in view of the rent note executed on 3rd July, 1960 Ex. 56 between the present plaintiffs and the defendant it was a fresh deed of agreement by virtue of which the appellant was inducted into the tenancy and thus he cannot now deny the right of the present plaintiff to file a suit against him. I have perused the aforesaid rent note. The aforesaid rent note does not create a new tenancy but on account of alterations made, certain conditions including the rent were changed. The rent note itself states that the appellant is a tenant of the said accommodation. Thus instead of creating any new tenancy it recognises existence of tenancy from before the execution of the rent deed. In view of this when the right of the appellant was not being created as a tenant by this rent deed nor it can be said that the appellant got possession only on account of the said rent deed, then in such a case the plea of estoppel cannot be attracted. His right of tenancy was admittedly continuing as successor from his predecessor for a very long time. The aforesaid rent deed could not be said to be a new tenancy. 9. IN view of the aforesaid discussions I am of the view that the aforesaid proposed amendment if otherwise permissible under law, does not create a bar on the appellant to take up the defence which he is proposing by means of the said amendment. 10. The aforesaid rent deed could not be said to be a new tenancy. 9. IN view of the aforesaid discussions I am of the view that the aforesaid proposed amendment if otherwise permissible under law, does not create a bar on the appellant to take up the defence which he is proposing by means of the said amendment. 10. NEXT it was urged that the proposed amendment and admission of the additional evidence should not be permitted which has been made after about 20 years of the filing of the suit at the second appellate stage and since by the proposed amendment not only the defendant wants to wriggle out of his admission but he is changing the very nature of the suit on entirely inconsistent and new plea which prejudices the plaintiffs. He further urged that from the conduct of the defendant and also on the facts and circumstances of this case such an amendment should not be permitted. On the other hand, counsel for the defendant-appellant urged that under Order 6 Rule 17 an amendment can be granted at any stage in order to decide the controversy in the suit and in this respect the general consensus of the Court has always been very liberal. It is relevant to refer to certain facts before adverting to these arguments. The suit was filed by the plaintiff-respondents for ejectment, recovery of arrears of rent and damages on the ground of default in paying rent and for making material alteration in the disputed accommodation. The defence set up by the appellant was that there was no default in making the payment of rent as alleged and no material alteration has been made. The suit of the plaintiff being decreed by the trial court and the appeal of the appellant being dismissed by the first appellate court, the present Second Appeal has been filed. The defence set up by the appellant was that there was no default in making the payment of rent as alleged and no material alteration has been made. The suit of the plaintiff being decreed by the trial court and the appeal of the appellant being dismissed by the first appellate court, the present Second Appeal has been filed. In both the applications ; the first for amendment of the written statement and the second for adducing additional evidence, it is asserted that on 16th July, 1984 the appellant came to know from one Bashir Ahmad that the shop in question was a Waqf property and the plaintiffs were not the owners of the same, and since the said fact came to the appellant's knowledge, now he is seeking the amendment in his written statement with the request to admit in evidence the two documents annexed along with the said application. The effect of this knowledge was sought to be challenged by the plaintiff-respondents in para 11 of the counter affidavit by saying that the particular of Bashir Ahmad has not been disclosed. It was suggested that the details were not given so that the facts could not be confirmed. During the course of arguments it was vehemently urged that since no affidavit of Bashir Ahmad has been filed in this case and thus averment of knowledge on 16-7-1984 should not be believed and thus admitting of additional evidence and the amendment at this stage should not be permitted. 11. IT cannot be doubted that by permitting this amendment it would necessitate a fresh trial with a fresh evidence and the amendment of the plaintiff with fresh issues in consequence thereof. Learned counsel for the appellant relied on the case of Ishwar Das v. The State of Madhya Pradesh, AIR 1979 SC 551 in which the amendment was allowed at the appellate stage to the written statement to raise a new plea. In this case it has also been held that one of the circumstances which should be taken into consideration before an amendment is granted to the delay in making the application seeking such amendment. The next reliance placed was the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahar, AIR 1983 SC 462 . In this case the Supreme Court has held that the admission made by a party may be withdrawn or may be explained away. The next reliance placed was the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahar, AIR 1983 SC 462 . In this case the Supreme Court has held that the admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. On the other hand, counsel for the respondents relied on the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. v. M/s. Lad ha Ram and Co., AIR 1977 SC 680 . In this case it is held that inconsistent pleas could be made in pleadings but in making it he cannot displace the plaintiff completely from the admissions made by the defendants in the written statement. IT was further held that if such amendment is allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The next case relied was that of Haji Mohammad tehaq Wq. S. K. Mohammad v. Mohammad Iqbal and Mohammad Ali and Co., All 1978 SC 798. Relevant para is quoted below " The amendment of the written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. IT would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. " The rejection of the amendment of the written statement by the High Court in appeal was upheld by the Supreme Court. From the aforesaid authorities it is clear that the view of the Supreme Court has been very liberal in the matter of granting amendment. In fact, the purpose behind it is that substantial justice should be done in the matter of a dispute raised by the parties on which they are in issue and mere procedural defect may not come in the way of granting such an amendment. In fact, the purpose behind it is that substantial justice should be done in the matter of a dispute raised by the parties on which they are in issue and mere procedural defect may not come in the way of granting such an amendment. The guide line provided to the Court is to consider whether such amendment has been brought after long lapse of time or whether such amendment completely changes the nature of original defence to bring about entirely new plea which was never taken in the original pleading and grant of such amendment should be on the facts and circumstances of each case. 12. BEFORE referring to the facts of the present case it is relevant to refer Order 6 Rule 17 CPC. For ready reference the same is quoted below : " Amendment of Pleadings The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. " By mere reading of the aforesaid Rule it is clear that the purpose of granting amendment at any stage of the proceedings is to assist the court to determine the real question in controversy between the parties. Thus the amendment has to confine to the question in controversy between the parties, howsoever liberal, the approach may be. Order 6 Rule 17 cannot be utilised by the parties to go beyond the very dispute raised by the parties. Thus unless there is lis between the parties the amendment cannot be allowed. Thus if there is dispute, then even inconsistent pleas or pleading seeking to withdraw from amendment, the admission made by the parties could be permitted on the facts and circumstances of each case. However, this rule does not allow a party to obtain amendment in the matter which was never in controversy between the parties. The use of words " real question in controversy " under Order 6 Rule 17 is very significant. In all the authorities cited by the learned counsel for the parties there was an existing lis, though in different form for which the amendment was sought. The use of words " real question in controversy " under Order 6 Rule 17 is very significant. In all the authorities cited by the learned counsel for the parties there was an existing lis, though in different form for which the amendment was sought. The learned counsel for the appellant has not been able to show any authority in which the amendment was permitted on a subject-matter which was never in controversy between the parties. Similarly Order 41 Rule 27 (aa) is also relevant to refer here which is as under : " the party seeking to produce additional evidence establishes that notwithstanding the exercise of due deligence, such evidence was not within his knowledge or could not, after the exercise of due deligence, be produced by him at the time when the decree appealed against was passed. " Clause (b) of the aforesaid Rule is as under : " the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause . " The production of additional evidence is only when the appellate court requires any such document to enable u to pronounce the judgment or for any other substantial cause. The exercise of power' under Order 41 Rule 27 is only required when the appellate court finds some inherent lacuna in the evidence in pronouncing the judgment or in the interest of justice something which remains obscure can be filled up so that it can pronounce the judgment in a more satisfactory manner. The exercise of power thus is only on account of the Court. The use of the following words in Order 41 Rule 27 (b) is very significant : " the appellate court requires any document to be produced.................. to enable it to pronounce judgment, or for any other substantial cause ". Here the power is exercised where additional evidence is necessary to help the court in pronouncing the judgment. Judgment in the appellate court inevitably be on the controversy raised in the suit on which the parties are at issue. The appellate court would not require any document to be produced for a matter for which there is no lis between the parties. Judgment in the appellate court inevitably be on the controversy raised in the suit on which the parties are at issue. The appellate court would not require any document to be produced for a matter for which there is no lis between the parties. It is for this reason under this sub-clause the power is exercised for the requirement of the appellate court and not on the basis of the party where he wants to change the very lis out of which the appeal has been preferred. 13. IN the case of K. Venkataramaiah v. A. Seetharama Reddy, AIR 1963 SC 1526 , relevant paras 16, 17 and 18 are quoted below : "(16) in view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharama Reddy's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well the cases where even though the court finds that it is able to pronounce judgment on the statement of record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment" it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27 (1) (b) of the Code, (17) It is easy to say that such requirement of the court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 INd. App. 254, AIR 1931 P. C. 143 the Privy Council while discussing whether additional evidence can be admitted observed : " It may be required to enable the court to pronounce judgment, or for any other substantial cause, but in either case it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The "legitimate occasion for the size of this discussion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent". (18) As the Pricy Council proceeded to point out : " It may well be that that defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands." 14. THUS looking both from the angle of Order 6 Rule 17 and Order 41 Rule 27 I find that the proposed amendment sought by the appellant is beyond the lis in the present suit. THUS looking both from the angle of Order 6 Rule 17 and Order 41 Rule 27 I find that the proposed amendment sought by the appellant is beyond the lis in the present suit. No dispute has been raised in this case that the plaintiffs are not the owners or landlord of the disputed property. On the contrary the defendant admitted in the written statement that the plaintiffs are the owners and he has been paying the rent to them regularly without any default. He has also admitted that he executed the rent note dated 3rd July, 1960 between the parties. Ext. 56 wherein also he has admitted the plaintiffs to be the owners of the property. Now by means of the proposed amendment not only defendants wants to take new plea and inconsistent plea or trying to wriggle out from the admission and wants to introduce absolutely new case which requires retrial but his proposed amendment is on a matter for which parties were never at lis in the present suit. There was no controversy between the parties in respect of the matter which is sought to be included by means of the amendment. In such a case it cannot be said that the appellate court requires such evidence for pronouncement of the judgment effectively in this case. The judgment can only be pronounced by the appellate court on matter in issue. Similarly an amendment of written statement under Order 6 Rule 17 can only be done if such an amendment is for the purpose of determining the real question of controversy between the parties. The real question in controversy is very significant statement in Order 6 Rule 17. It means there must be in existence the controversy when such an amendment is proposed. In the present case admittedly no such controversy existed. THUS even if it could be said that the appellant came to know of such document at this late stage, the same could not be permitted both under Order 6 Rule 17 and Order 41 Rule 27 CPC. Apart from this, the conduct of the parties is also relevant in this case to decide whether such amendment should be permitted or not. Apart from this, the conduct of the parties is also relevant in this case to decide whether such amendment should be permitted or not. Throughout the defendant had been treating the plaintiff as his landlord and owner not only by admission in the written statement but even by his conduct by admitting that regularly he has been paying the rent right from very inception. In fact, not only because the amendment is being sought to be made after 20 years of the filing of the suit but even from several decades earlier to the filing of the suit the defendant has accepted the plaintiffs and his predecessor as his landlords and has been paying the rent to them. In view of this it would not be right now at this stage of Second Appeal to permit the defendant to completely change his stand which may necessitate a fresh trial of the suit itself. This is an additional ground, in my opinion, on which such amendment could not be permitted, 15. LEARNED counsel for the plaintiff-respondents urged that in the present case since the plaintiff no. 2 is also Mutwalli of the Waqf even as per the proposed amendment which the appellant wants to file and the interest of Mutwalli is not different from that of the plaintiff, the amendment sought for is wholly unnecessary. A Mutwalli can also file a suit on behalf of Board and since in the present case a Mutwalli is already the plaintiff, namely non-description as such will not make any difference. It was further urged that in the matter of realisation of rent and eviction, who is real owner, is not necessary. Even an agent of the owner can realise the rent under the U. P. Temporary (Control of Rent and Eviction) Act, 1947 and he would be a ' landlord ', under section 2 (c) of the said Act. The word ' landlord ' includes an agent, attorney, heir or assignee of such person. Mutwalli being the Manager of the Waqf, as has been held in the case of Moattar Raza v. Joint Director of Consolidation U. P. Camp at Bareilly, AIR 1970 Alld. 509 he really acts on behalf of the Board. Since in the present case the defendant has been paying the rent to the plaintiff who is also Mutwalli, the changed position, even if it be accepted, makes no difference. 509 he really acts on behalf of the Board. Since in the present case the defendant has been paying the rent to the plaintiff who is also Mutwalli, the changed position, even if it be accepted, makes no difference. The learned counsel, on the other hand, urged that in the State of U. P. the Central Waqf Act, 1954 is not applicable. Under the U. P. Muslim Waqf Act, 1960 only Board can institute a suit in respect of proceeding in the court of law regarding the waqf. He relied on the case of Maulvi Raza Ansari v. Shyamlal Sah, AIR 1983 Patna 299 in which after coming into the aforesaid Central Act where the Mutwalli filed an application in the execution proceedings the Court held that the Mutwalli had no power, it is only the Board which can do so. It was urged in this regard the provisions of Central Act is paramateria with the State Act. Thus Mutwalli has no right to institute a suit. It is only the Board which can do so. On the other hand, learned counsel for the respondents urged that the duties of Mutwalli has been provided under section 49 of the State Act. He further urged that the powers of Mutwalli for filing suit are not taken away either by the Central Act or State Act. Under the Muslim law the power of Mutwalli is still continuing and has not been abrogated. He referred the Book of Tyabji on Mohammedan Law, 1913 Edn. p. 418, where it was stated that Mutwalli could always act for the protection and administration of the Waqf Property. He also relied on the case of Shahi Jama Masjid Merta v. Kanhaiya Lal Bhagat, AIR 1973 Raj 322 and Syed Khersha Sajanshah Mutwalli Bhuj Kutch v. The Bhuj Municipality, AIR 1986 Guj. p. 1 where it was held that the Mutwalli could file a suit even after coming into force of the Central Waqf Act, 1954. He also relied on sections 50 and 54 of the State Act from which necessary inference can be drawn that the suit could be filed, apart from by the Board by any other person. p. 1 where it was held that the Mutwalli could file a suit even after coming into force of the Central Waqf Act, 1954. He also relied on sections 50 and 54 of the State Act from which necessary inference can be drawn that the suit could be filed, apart from by the Board by any other person. On the other hand, the counsel for the appellant urged that this is only confined to the case referred to in that section i. e. for any relief mentioned in section 14 of the Religious Endowment Act (Act no. 20) of 1963 and the suit under section 92 CPC and in no other case. It was also urged on behalf of the plaintiff-respondents that the Waqf is Waqf-alal-aulad and in such a case under section 50 of the State Act even the account is not necessary to be submitted by the Mutwalli except which is specified, or set apart for religious or charitable purposes. Counsel for the appellant, however, disputed that the present Waqf is Waqf-alal-aulad. 16. THE contention raised on behalf of the plaintiff-respondents in respect whether the suit could be treated to be by Mutwalli or not or whether it is Waqf-alal-aulad or nor or the question whether Mutwalli can file suit on behalf of the Board or not or even after coming the Central Act or State Act, the power of Mutwalli to file the suit are the questions not to be gone into the present case. I have already held above that the present amendment with prayer of admitting additional evidence could not be granted in view of it falling beyond the scope of Order 6 Rule 17 and Order 41 Rule 27 and also on account of the conduct of the defendant for long number of years treating the plaintiff as the landlords and owners and paying the rent continuously inspite of the fact that the Waqf came into existence since 1918. THE aforesaid question, therefore, raised by the counsel for the parties need not be gone into as it would only be academic. The question whether one of the plaintiffs who is also Mutwalli has been rendering account for the Waqf or not. THE aforesaid question, therefore, raised by the counsel for the parties need not be gone into as it would only be academic. The question whether one of the plaintiffs who is also Mutwalli has been rendering account for the Waqf or not. The question whether he has been acting bonafide in the interest of Waqf property as raised by the appellant are questions interse between the plaintiff Mutwalli and the Waqf Board to which the defendant-appellant would have no concern. The Waqf Board is a responsible body and knows its powers and duties under the Act. Since in the present case the Waqf came into existence from 1918 and according to the parties the rent was being paid throughout by the defendant-appellant not to the Waqf Board or to the person as Mutwalli, thus the question whether plaintiff has been depositing the rent with the Board or not is a matter concerning the Board. It may be that such Mutwalli might be depositing under its authority the rent realised for the Board. However, whether he is depositing or not, is a matter exclusively between such Mutwalli and the Board. 17. IN view of these facts and circumstances and the findings recorded by me above, 1 am of the view that the aforesaid two applications dated 21st August, 1984 for admitting the two documents (Annexures 1 and 2) and also for amending the written statement under Order 41 Rule 27 and Order 6 Rule 17 CPC are devoid of any merits, and are hereby rejected. Applications rejected.