Judgment ( 1. ) HEARD on admission. ( 2. ) THIS appeal is filed by the appellant-plaintiff against the judgment and decree dated 25-1-2007 passed by Additional Judge to the Court of District Judge, Fast Track, Gwalior, in Civil Appeal No. 20-A/06, whereby the judgment and decree passed by the Trial Court dismissing the suit for ejectment was affirmed. ( 3. ) BRIEF facts of the case are that the father of the present appellant krishna Rao was owner of the disputed house bearing Survey No. 57/1690. Krishna Rao acquired the suit property from his father Late Shri Anand Rao, who expired on 12-2-1944. On 15-5-2002, he filed a suit for ejectment under section 12 (1) (a) and (c) of the M. P. Accommodation Control Act, 1961 (for short the Act ). It was pleaded that defendant No. 1 is daughter of Krishna Rao, married to Shri R. G. Khanvalkar and after some time of her marriage, her husband developed bad habits, i. e. , started taking liquor and assaulted her and, therefore, the plaintiff who is father of the defendant No. 1 agreed to let out the house in question for residential purpose to the defendant No. 1 and inducted her as tenant on monthly rent of Rs. 200/- per month, excluding water and electricity charges. The tenancy of the defendant was oral and from month to month. It was alleged that defendant has paid the rent upto December, 2001 but thereafter, no rent was paid. Krishna Rao, the original plaintiff executed will on 3-5-1992 in favour of his wife and son. After death of his wife, he executed another will dated 2-2-2002 in favour of his son Ullas Kavitkar vide Exh. P-2. On 18-4-2003, Krishna Rao died and his son, the present appellant was impleaded as plaintiff. ( 4. ) THE defendant No. 1 filed her written statement, denied the relation of landlord and tenant and also denied that any rent was ever paid by the defendant to the plaintiff. It is averred that her father Krishna Rao voluntarily allowed her to stay in the ancestral house. After death of Krishna Rao, her second daughter Smt. Mangla impleaded as defendant No. 2. Both the defendants filed their written statement and denied that defendant No. 1 is tenant of the plaintiff. It is averred that her father Krishna Rao voluntarily allowed her to stay in the ancestral house. After death of Krishna Rao, her second daughter Smt. Mangla impleaded as defendant No. 2. Both the defendants filed their written statement and denied that defendant No. 1 is tenant of the plaintiff. It is also averred that defendant No. 1 is residing from last 35 years over the suit house and suit house is not a self acquired property of krishna Rao and, therefore, she is entitled for share over the suit property. The defendant No. 1 in his written statement stated that she is residing since 20-6-1961. The defendant No. 2 denied the will dated 2-2-2002 executed in favour of plaintiff. ( 5. ) THE Trial Court after appreciating the oral and documentary evidence dismissed the suit for ejectment and held that appellant failed to prove the relationship of landlord and tenant. ( 6. ) IN an appeal filed by the appellant, the Lower Appellate Court after appreciating the judgment and decree of the Trial Court and after considering the oral and documentary evidence has held that the relationship of the landlord and tenant between the plaintiff and defendant No. 1 is not duly proved and upheld the judgment and decree of the Trial Court by which suit of the appellant was dismissed under Section 12 (1) (a) and (c) of the Act. The Lower Appellate court has held that there is no relationship of landlord and tenant, therefore, section 12 (1) (c) of the Act would not be attracted. ( 7. ) THE appellant-plaintiff challenged the judgment and decree of the lower Appellate Court by filing this second appeal on 8-5-2007. During pendency of the appeal, the appellant filed an application under Order 6 Rule 17 of CPC seeking permissions to amend the plaint vide I. A. No. 11058/07. It is averred in the application that appellant-plaintiff is owner of the suit house by virtue of will dated 2-2-2002 and, therefore, plaintiff be declared as owner and title-holder of the suit property and also by way of proposed amendment, prayed for relief of possession. It is averred in the application that appellant-plaintiff is owner of the suit house by virtue of will dated 2-2-2002 and, therefore, plaintiff be declared as owner and title-holder of the suit property and also by way of proposed amendment, prayed for relief of possession. The respondent No. 1 filed its reply and opposed the application on the ground that the appellant by way of this amendment is trying to change the nature of the suit, which is not permissible under law and he can file a separate suit for declaration of title and possession. The proposed amendment will change the nature of the suit. He submits that earlier suit was filed for ejectment under Section 12 (1) (a) and (c) of the Act and now by the proposed amendment, he is converting this suit to the suit for declaration and permanent injunction which is not permissible under law and prayed for dismissal of the application. ( 8. ) LEARNED Counsel for the appellant drew my attention to the unreported decision of this Court in the case of Hansraj Vs. Gomtibai, passed in s. A. No. 179/1977, decided by this Bench on 30-10-1979. Paras 3 to 6 are relevant which reads as under:- "3. Shri Gupta, learned Counsel appearing for the plaintiff-respondent, pointed out that in the present case there was no question of limitation because even initially in the plaint, the claim for possession had already been made on the basis of title. He further pointed out that from the pleadings as contained in Para 4 of the plaint it is apparent that the claim for eviction on the basis of the relationship of landlord and tenant was made in the alternative. It is true that the suit had remained pending for more than 12 years. It is also apparent that despite there being a claim for possession on the basis of title, no specific issue was framed on that count and the matter was also not tried accordingly. As contended by Shri Anand, learned Counsel for the defendant, the defendant also could not put up his case for showing the defects in the title of the plaintiff and various other relevant circumstances, e. g. , huge expenditure incurred in the addition and alteration of the suit building to the tune of thousands of rupees. As contended by Shri Anand, learned Counsel for the defendant, the defendant also could not put up his case for showing the defects in the title of the plaintiff and various other relevant circumstances, e. g. , huge expenditure incurred in the addition and alteration of the suit building to the tune of thousands of rupees. In my opinion, if the plaintiff is compelled to file a fresh suit, there will be unnecessary complications because a sufficient long period had expired. Even if there would have been a question of limitation, in the facts and circumstances of the present case, the amendment deserves to be allowed. As observed by Their Lordships of the Supreme Court in a. K. Gupta and Sons Vs. Damodar Valley Corporation ( AIR 1967 SC 96 ), amendment in a particular case could be allowed even after the expiry of the statutory period of limitation. In the facts and circumstances of the present case, and particularly when the pleadings disclose that the claim for possession was not purely on the ground of relationship of landlord and tenant, but the same was based on title also, in the alternative, it would have been proper and better that the suit should have been tried for the claim on the basis of title also. By the proposed amendment the plaintiff has made this position specific and necessary formal amendment in the frame of the suit is also sought to be made. As observed by Their Lordships of the Supreme Court in Para 8 of the decision referred above, a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. 4. The defendant will have full opportunity to make consequential amendment and put up his case in defence. He will also be free to put up the various circumstances, e. g. , incurring expenditure in the addition and alteration of the building in question, etc. , in justification of retaining the possession. It is, therefore, not necessary for this Court at this stage to express any opinion on the merits of the claim regarding the title of the parties and the entitlement of the plaintiff to claim possession on the basis of title. , in justification of retaining the possession. It is, therefore, not necessary for this Court at this stage to express any opinion on the merits of the claim regarding the title of the parties and the entitlement of the plaintiff to claim possession on the basis of title. All this will be a matter for due trial and adjudication. 5. Shri Gupta, learned Counsel for the plaintiff, however, contended that in order to avoid delay, specific issues may be framed and the matter may be remitted to the Trial Court for recording findings and, thereafter this appeal may be decided. Shri anand, however, contended that since the suit was tried for the claim of possession on the basis of the relationship of landlord and tenant, prejudice will be caused to the defendant if this Court for the first time deals with the issues which had not at all been dealt by the Lower Appellate Court. In my opinion, the contention raised by shri Anand deserves consideration. In order to ensure fairness to the interests of both sides, it would be just and proper to remand the suit to the Trial Court for fresh trial and adjudication according to law. 6. It is, however, clarified that the defendant will be free to raise the question of limitation, if any, for showing that the suit for possession on the basis of title has become barred by time even on the initial date of its institution itself. The judgments and decrees of the courts below are, therefore, set aside. The suit is remanded to the trial Court with the direction that the plaintiff shall be permitted to incorporate the amendment as proposed on payment of costs of Rs. 200/- to the defendant. The defendant shall be given opportunity to make consequential amendment and thereafter the suit should be tried on the issues as may arise on the pleadings. It is further clarified that since the claim for possession on the basis of relationship of landlord and tenant had already been given up, there will be no necessity of trial on the issue relating to that aspect of the case. The trial Court shall see that the suit is disposed of within a period of about six months or so from the date of first appearance of the parties before the Trial Court. The trial Court shall see that the suit is disposed of within a period of about six months or so from the date of first appearance of the parties before the Trial Court. Both the Counsel have made a statement that the parties will co-operate in ensuring speedy trial and expeditious disposal of the suit. " ( 9. ) HE also drew my attention to the unreported judgment dated 31-7-1978, passed in the case of Anil Kumar Vs. Dr. Krishna Rao, passed in S. A. No. 61/1970, in which after dismissal of the suit for ejectment, an application for amendment was filed during pendency of the second appeal for conversion of suit into title suit. This Court allowed the amendment and remitted the matter to the Trial Court for deciding afresh in accordance with law. Learned Sr. Counsel further drew my attention to the decision of this Bench in the case of Girdhari lal Vs. Raj Kishore, 1996 MPLJ 28, and submitted that in the case of Girdhari lal (supra), initially the suit was filed for eviction and arrears of rent by the landlord against the tenant and during pendency of second appeal by way of amendment, the landlord prayed for decree for possession on the basis of his title. The application for amendment was allowed. ( 10. ) ON the other hand, Shri Prakash Braru, learned Counsel appearing on behalf of respondent No. 1 drew my attention to the decision of the Apex court in the case of Baldev Singh and others Vs. Manohar Singh and another, (2006) 6 SCC 498 . ( 11. ) IT is well settled that by way of amendment a new case or a new cause of action cannot be allowed to be settled. The plaintiff, therefore, cannot be allowed to convert his original claim into one of different character by Act no. 22/02 Rule 17 of Order 6 is amended w. e. f. 1-7-2002. As per proviso to Rule 17, no application for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. ( 12. ) HERE, in the present case, the suit was filed on 15-5-2002. The original plaintiff Krishna Rao died on 18-4-2003. ( 12. ) HERE, in the present case, the suit was filed on 15-5-2002. The original plaintiff Krishna Rao died on 18-4-2003. He, during his life time, executed will in favour of the appellant on 2-2-2002 (Exh. P-2 ). The appellant immediately after substitution of his name came to know that he is owner of the suit property. He also knew that will has been executed by his father in his favour and respondents-defendants in their written statement denied the relationship of the landlord and tenant and claimed title over the suit property on the ground that suit property is ancestral property and they are co-sharer and entitled for share over the suit house. Thus, the plaintiff from the very beginning, knew that the relationship has been denied and respondents- defendants are claiming title over the suit property but no application for amendment was filed nor the plaint was amended during pendency of the trial and, therefore, it cannot be said that in spite of due diligence, he could not raise any plea before the commencement of trial. In view of the Proviso to Rule 17, the application for amendment which will change the nature of the suit originally filed by the appellant cannot be allowed at this stage. The amendment application filed by the appellant will change the nature of the suit and, therefore, by way of amendment, no permission can be granted to the appellant to convert his suit for ejectment into a suit for declaration and title. It is not in dispute that suit property was ancestral property of the original plaintiff Krishna Rao. All the decisions cited by the learned Counsel for the appellant is of prior to 1-7-2002. ( 13. ) FOR the above-mentioned reasons, the application (I. A. No. 11058/07) for amendment filed by the appellant has no merit and is accordingly dismissed. ( 14. ) THE appellant filed an application for taking additional evidence on record vide, I. A. No. 2348/08. Along with this application, the appellant filed a copy of the plaint of Civil Suit No. l-A/04 and order dated 7-2-2005, by which the suit filed by the respondent No. 1 for declaration and permanent injunction was dismissed for want of prosecution. This application has been filed on 7-2-2008. Along with this application, the appellant filed a copy of the plaint of Civil Suit No. l-A/04 and order dated 7-2-2005, by which the suit filed by the respondent No. 1 for declaration and permanent injunction was dismissed for want of prosecution. This application has been filed on 7-2-2008. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the appellant or that such evidence was not within its knowledge. The documents sought to be brought on record are not documents which were discovered later or came into existence after judgment and decree of the Courts below. It is well settled that Order 41 Rule 27 of CPC cannot be invoked by a party to fill up the lacuna in this case. The appellant was party in the said civil suit and he was represented through his Counsel on 7-2-2005 when the suit of the respondent No. 1 was dismissed for want of prosecution. The Trial Court dismissed the suit of the appellant on 25-4-2006 and the appeal against the said judgment and decree was dismissed on 25-1-2007. The appellant had sufficient opportunity to bring the evidence on record before the Trial Court. Considering these facts and circumstances of the case, I. A. No. 2343/08 filed by the appellant has no merit and is accordingly dismissed. ( 15. ) LEARNED Counsel for the appellant submits that respondent No. 1 was a Government Teacher and she filled up the Form F in which she gave an undertaking that she is residing in a rented premises and paying the rent. The appellant applied for copy of this document under the provisions of Right to information Act, 2005 on 22-5-2006. He received the copy on 25-5-2006 and filed the application for taking the said document on record. It is not in dispute that Right to Information Act came into force in the year 2005. The appellant from the very beginning knew that respondent No. 1 was a Government employee and, therefore, he could have apply earlier for certified copy of the form F by which respondent No. 1 made a declaration regarding house rent allowance etc. It is not in dispute that Right to Information Act came into force in the year 2005. The appellant from the very beginning knew that respondent No. 1 was a Government employee and, therefore, he could have apply earlier for certified copy of the form F by which respondent No. 1 made a declaration regarding house rent allowance etc. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the appellant or that such evidence was not within its knowledge. Even otherwise the evidence on record did not support the case of the appellant. Having considered from every angle, I am satisfied that the Lower appellate Court rightly rejected the application filed by the appellant for additional evidence at the stage of appeal which is intended only to fill up the lacuna in its case. ( 16. ) THE Apex Court in the case of Mahavir Singh and others Vs. Naresh chandra and another, AIR 2001 SC 134 , has held that the additional evidence can be taken only when the conditions and limitations Laid down in Order 41 rule 27 of CPC are found to exist. The matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. It has been held by the Apex Court that the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. ( 17. ) IN view of the law Laid down by the Apex Court in the case of mahavir Singh and others (supra), the Lower Appellate Court has not committed any error in rejecting the application filed by the appellant for taking additional evidence on record. The Lower Appellate Court after appreciating the judgment and decree of the Trial Court and after appreciating the evidence on record very specifically gave a finding that no relationship of landlord and tenant has been established between the appellant and respondent No. 1. The finding recorded by the Courts below is finding of fact based on appreciation of evidence on record. No question of law much less a substantial question of law arises in this appeal. The finding recorded by the Courts below is finding of fact based on appreciation of evidence on record. No question of law much less a substantial question of law arises in this appeal. The second appeal filed by the appellant has no merit and is accordingly dismissed.