JUDGMENT 1. - These two Civil Misc. appeals have been heard together and since common questions are involved, I propose to decide them by a common judgment. 2. The facts giving rise to appeal No. 39 of 1978 may briefly be stated. The plaintiff-respondent instituted a suit on February 14, 1974 for ejectment against the defendant appellant in respect of the shop described in para No. 1 of the plaint. The ejectment was sought on the ground of reasonable and bonafide necessity. The defendant contested the suit on various grounds vide his written statement dated April 15, 1974. On the pleadings of the parties, the trial Court framed three issues inclusive of relief on April 23, 1974 which when translated into English, run as follows :1. Whether the shop in question is required by the plaintiff for him self and his family member reasonably and bonafide ? 2. Whether the tenancy of the defendant stood validly terminated by notice dated 13-12-73 and 1-1-74 ? 3. ReliefDuring the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance, 1975 (Ordinance No. XXVI of 1975) came into force. Sub-section (2) was newly added by this Ordinance to the existing Section 14 which reads as under:- "No decree for eviction on the ground set froth in clause (h) of Sub-section (1) of Section 13 shall be passed if the Court is satisfied that, having regard to all the circumstances of the case including shall, subject to all just exception, be evidence during the trial after remand". It is clear from the orders under appeal that the learned Civil Judge did not examine the case on merits while allowing the applications for grant of amendment of the plaint filed by the plaintiff. He directed that amended plaints should be filed in the trial Court on or before April 18, 1978 and thereafter issues Nos. 1 and 4 be decided afresh in accordance with law after recording necessary evidence of both the parties. He directed that amended plaints should be filed in the trial Court on or before April 18, 1978 and thereafter issues Nos. 1 and 4 be decided afresh in accordance with law after recording necessary evidence of both the parties. He, therefore, ordered that the appeal is decided accordingly and the judgment and decree of the trial Court dated March 13, 1976 are set aside, it may be recalled here that the trial Court found that the plaintiff was able to establish his reasonable and bonafide necessity, that the notice was served on January 1, 1974 and the tenancy was validly terminated, that the greater hardship would be caused to tenant by passing the decree that by refusing to pass it in favour of the plaintiff and that the defendant has not been able to satisfy as to how the plaintiff is not entitled to maintain the suit for ejectment. The finding on issues Nos. 1, 2, 4 and 5 were neither specifically reversed nor set aside in the appeal. The learned Civil Judge, as appears from the judgment, did not apply his mind at all to the finding arrived at by the trial Court and merely rest contented by making a direction that issues Nos. 1 and 4 be decided afresh by the trial Court in accordance with law after recording necessary evidence of the parties. He set aside the judgment and decree of the trial Court without affirming or reversing or setting aside the finding on issues Nos. 2 and 5 which were also decided by the trial Court. Before making an order of remand; it was necessary for the learned Civil Judge to reverse or set aside the findings arrived at by the trial Court which he has filed to do. It is well settled that no remand can be ordered under Order 41, Rule 23 CPC unless the decision of the lower Court is reversed or set aside in appeal and that can only be done after examining the merits of the case. In support of his argument, learned counsel for the appellant placed reliance on Akkanagamma and others v. R. Nageshwariah and another; AIR 1968, Mysore 266, and an unreported decision of this Court in S.B. civil Revision No. 347 of 1964 (Aziz Khan v. Smt. Sakeena decided on July 15, 1965) . In support of his argument, learned counsel for the appellant placed reliance on Akkanagamma and others v. R. Nageshwariah and another; AIR 1968, Mysore 266, and an unreported decision of this Court in S.B. civil Revision No. 347 of 1964 (Aziz Khan v. Smt. Sakeena decided on July 15, 1965) . In Aziz Khan's case (supra), the appellate Court allowed the application for amendment of the plaint and remanded the suit for decision in accordance with law without upsetting the findings of fact arrived at by the Court. The learned Judge after examining the findings arrived at by the trial Court, observed as follows:- "The appellate Court accordingly had no jurisdiction to allow the amendment application and remand the suit". Order 41, Rule 23 C.P.C. (as amended in Mysore in 1950), came up for consideration in Akkanagamma and others v. Nageswariah and another (supra).The following observations were made in para 10 of the report:- "An order of remand by a First Appellate Court should be an order pursuant to a conclusion arrived at by first appellate Court after a final hearing of the appeal. Before the first appellate Court can make an order of remand, the relevant rule requires that it should set aside the order of the trial Court and no appellate Court set aside the order of the trial Court without examining the case on merits. Even when the rule empowers the appellate Court to remind any case where it considers it necessary in the interest of Justice to make an order of remand the opinion that the interest of justice to require or call for such an order is an opinion which can be entertained only after an examination of the merits of the case. The tentative opinion on the matter without examining full records of the case cannot in sense be regarded as a sound conclusion that interest of justice do require that such an order should be passed." As stated above, there is nothing in the judgement of the learned Civil Judge to show that he upset those findings of the trial Court which were against the plaintiff who preferred the appeal. In these circumstances, the leaned Civil Judge was not right in remanding the suit to the trial Court for fresh decision on issues Nos. In these circumstances, the leaned Civil Judge was not right in remanding the suit to the trial Court for fresh decision on issues Nos. 1 and 4.It was next argued by the learned counsel for the appellant that the Judge of the lower appellate Court committed a serious error of law in allowing the amendment of the plaint without examining the record of the trial court and the merits of the controversy. According to the learned counsel, he could permit the amendment of the plaint after hearing the appeal on merits for, whether amendment of the plaint should be permitted at the appellate stage cannot be properly decided unless the appeal is heard on merits. Strong reliance was placed on the Akkanagamma and others v. R. Nagesharish and other (supra) and Aziakhan's case (supra) and Khem Chand v. Government of M.P. 172 (21) Jabalpur Law Journal 482. In Aziz Khan's case, as stated above, the learned Judge held that the appellate Court had no jurisdiction to allow the amendment and remand the suit without reversing the findings of fact arrived at by the trial Court. In Akkangamma's case (1) learned Judge opined that when the first appellate Court hears an appeal, there is already a decision by the trial Court and the examination of the matter by the appellate Court is with a view to see whether the trial Court's decree suffers from any error calling for correction by the appellate Court. It was further observed that if the order of the trial Court is not shown to be erroneous in any regard, the appellate Court will be wrong in interfering with it and to permit the parties at the appellate stage to amend the pleading without first convincing the appellate Court that there is an error in that decree of the trial Court would relieve them from the consequences of the trial Court's order which is binding on them until it is set aside without examining the merits of the case and without coming to a conclusion that the said order suffers from any error. The following observations of the learned Judge are very significant:- "The type of error which may persuade the appellate Court to permit the parties to amend the pleadings in an error which is initially that of the parties themselves because having invited the decision of the trial Court upon pleadings originally presented by them it is not open to them straightaway to tell the appellate court that they be relieved by an order passed by the trial Court in original pleadings and be permitted to invite its decision upon amended pleading". In Khem Chand's case (2) while the appeal was pending for hearing, the non applicants submitted an application under Order 41, Cr.P.C. for being allowed to tender in existence the document and they also made an application for amendment of their written statement. The learned additional District Judge, who was seized of the appeal allowed both the applications on the condition of payment of casts to the petitioner. In these circumstances, the question arose in that case as to whether the party should or should not be allowed to amend it pleadings at the appellate stage. The learned Judge held that whether to permit the party to amend its pleadings at the appellate stage cannot, by its very nature, be decided unless the appeal is first heard on merits. The learned Judge, therefore, set aside the order of the learned Additional District Judge and directed him to consider application under Order 41 Rule 27 C.P.C. and the application for amendment of the written statement after hearing the appeal on merits. 6. Mr. Parakh vehemently argued that there is no requirement of law that before allowing an amendment of the pleadings at the appellate stage, the appellate Court should hear the appeal on merits and he further submitted that amendment application could be decide without going into the merits of the appeal. No hard and fast rule can be laid down in this regard but this has to be remembered that although the appellate Court does possess the power in appropriate circumstances to permit either of the parties before it to amend the pleadings the question whether such an amendment is necessary is also a question which can arise only as a consequence and therefore subsequent in point of time to an examination of the records of the trial Court and the merits of the controversy. Mr. Mr. Mehta also urged that the learned Judge of the lower appellate Court had no jurisdiction to entertain and try the application for amendment of the plaint as the hearing of the appeal stood concluded on October 17, 1977. Learned counsel submitted that the words used in Order 6, Rule 17, C.P.C. are "at any stage of the proceedings" and after the `conclusion' of the arguments in appeal, there remains no stage of the `proceedings' for, nothing is required to be done by the parties and only the Court is to pronounce judgment. He did not cite any direct authority taking this view but he, however, invited my attention to a decision reported in Arjun Singh v. Mohindra Kumar and other; AIR 1964 Supreme Court 993, wherein the following observations have been made in para 19:- "Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order 20, Rule 1 permits judgment to be delivered after an interval after the hearing is completed". These observations were made while considering the provisions of Order 9, Rule 6ORDER9, Rule 7 and Order 9, Rule 13. I am afraid these observations are not applicable to the facts of the case in hand. He further argued that the first appellate court went wrong in permitting the plaintiff to amend his plaint by insetting paras 12-A and 12-C after the close of the case and that the power of permitting the amendment should not be exercised until and unless good reasons are shown and in these cases having regard to their facts and circumstances, amendment should not have been permitted. He referred Midnapora Zamindary Co. Ltd. v. Raja Bijoy singh Dudhuria and others; AIR 1941 Calcutta 1, Vedachala Chettiar v. Ameena Bi Amal and others; AIR 1944 Madras 121, Jaldu Anantha Raghurama Arya v. Jaldu Bapanna Rao and others; AIR 1959 Andhra Pradesh 448, Dyavish and another v. Shivamma and another; AIR 1959, Mysore 188 and South India Corporation (Agencies) Private Ltd. Madras v. State Trading Corporation of India Ltd., Cochin; AIR 1970 Kerala 138. In view of the order that I propose to pass, I do not consider it necessary to express any opinion on the merits of the applications for amendment moved by the plaintiff. In view of the order that I propose to pass, I do not consider it necessary to express any opinion on the merits of the applications for amendment moved by the plaintiff. The learned Civil Judge has summarised the objections raised in the reply of the defendant-Appellant dated November 7, 1977 in the order under appeal. Therefore he referred to certain facts which the plaintiff wants to incorporate in the plaint in the plaint in the proposed paras 12-A and 12-C. He permitted the amendment holding - bl rF; dks fl) djus dk volj vihykFkhZ dks fn;k tkuk pkfg, D;ksafd ;g lqfo/kk larqyu dks fLFkr djsxk vkSj djsxk vkSj ekeys ds Hkkoh gy dkss izHkkfor djus okyk gks ldrk gSA He, was, however of the opinion that it is no necessary to comment upon the other objections raised by the defendant-appellant. I have already mentioned the various objections taken by the defendants in their replies dated November 7, 1977 and they need not be repeated here. It was not sufficient for the learned Judge of the lower appellate Court to remain satisfied by observing : vU; nyhysa tks iR;FkhZ }kjk mBkbZ xbZ os lkekU;r% la'kks/ku ds ekeys ls mBkbZ tkrh gS A pwafd ;s lkekU; ,oa O;kid izfrjks/k gS vr% mldh dzeokj fVIi.kh vko';d ugha gSA In my opinion, this is not the correct way of deciding the objections raised by the defendant in his reply to the application for amendment. It is no doubt true that to permit an amendment of a pleading is discretionary. Order 6, Rule 17 C.P.C. gives a wide discretion to the Court to allow amendments necessary for the purpose of determining that real controversy between the parties but the discretion is, however, a judicial one and not arbitrary exercise of the power. It is difficult to lay down exhaustively the circumstances under which the prayer for amendment is to be allowed but it is only after considering the facts of each individual case that the Court has to judiciously decide whither in a particular case amendment should be allowed or not. The governing consideration in an application for amendment is, as stated above, how far, if at all, the proposed amendment is necessary to determine the real controversy between the parties and if this test is not satisfied the amendment should not be allowed. The governing consideration in an application for amendment is, as stated above, how far, if at all, the proposed amendment is necessary to determine the real controversy between the parties and if this test is not satisfied the amendment should not be allowed. In cases like the two in hand, some of the other considerations which the Court, while deciding an application for amendment of the pleadings has to take note of are, (1) whether the effect of an amendment would be to enable the plaintiff to escape the consequences of an adverse decision after it was given against him, (2) whether the application is mala fide and (3) whether such an application is not a belated one. 7. The learned Judge of the lower appellate Court as mentioned above, ;did not apply his mind to these important considerations while allowing the applications for amendment. 8. I may mention that Mr. Parakh, learned counsel for the respondent frankly conceded before me that he has no objection if the order of remand passed by the lower appellate Court is set aside but he, however, submitted that since there has been some confusion on account of additional issue No. 4 being not framed properly as it is not clear from this issue, as to on whom the burden of proof lies, the amendment allowed by the lower appellate Court may be maintained and specific issue relating to comparative hardship may be framed by this Court placing burden of proof on the plaintiff and lower Court may be directed to record evidence of the parties in respect of the issue so farmed relating to comparative hardship and thereafter the appeal may be ordered to be disposed of in accordance with law. I regret, I cannot accept the prayer of the learned counsel for the respondent, for, the order allowing amendment suffers from various infirmities as pointed out above. Apart from this, it is worthy to note that the judge of the lower appellate Court or the trial Court has to record necessary evidence of the parties after filing of the amended plaint and thereafter to decide issues Nos. 1 and 4 afresh in accordance with law. The defendants-appellants have a right to file additional written statements to the amended portion of the plaint for which the learned Judge of the lower appellate Court has not given any opportunity to them. 9. 1 and 4 afresh in accordance with law. The defendants-appellants have a right to file additional written statements to the amended portion of the plaint for which the learned Judge of the lower appellate Court has not given any opportunity to them. 9. For the reason mentioned above, both the appeals are allowed and the orders of the learned Civil Judge dated March 20, 1978 whereby be allowed the application for amendment and remanded the suits to the trial Court are set aside. The learned Civil Judge is directed to dispose of the appeals as well as the application for amendment in accordance with law in the light of the observation made in this order. In the circumstances of the cases, I leave the parties to bear their own costs of these appeals. *******