JUDGMENT : SHIVAKANT PRASAD, J. 1. Challenge in this application is against the order dated 06.9.2017 passed by Civil Judge (Senior Division), 2nd Court at Howrah in Title Suit no. 152 of 2000, inter alia, on the grounds that the Trial Judge erred in law and in fact by allowing the defendants to amend their written statement and permitting them to take the plea of Thika tenancy prejudicial to the interest of the plaintiffs because amendment so allowed virtually permitted the defendants to withdraw their admissions made in the original written statement and the effect of such amendment would be to displace the plaintiffs’ suit from the admissions made by the defendants in the earlier written statements and deprive them of a valuable right already accrued to them. 2. Background leading to the instant case is that petitioners as plaintiffs had filed a suit for eviction, recovery of khas possession and mesne profits against the opposite parties herein before the Civil Judge (Senior Division), 2nd Court at Howrah registered as Title Suit No. 152 of 2000. 3. The defendants’ case as it would depict from the original written statement dated 11.7.2002 is that they admitted the facts that Late Satyanarayan Bagla leased out the suit premises in favour of Smt. Pano Rani Burman since deceased, the grandmother of the defendants for a period of 30 years with effect from 29th April, 1967 at an aggregate rate of Rs. 3,000/- per month. 4. Further case of the defendants is that the defendants’ predecessor Roy Mohan Lal Khetri Bahadur by virtue of a lease deed dated 17th August, 1986 took lease of the suit property and erected jute Godown building and raised permanent structure on the land in suit and carried on the business of Jute balers at the said premises under the name of Empress of India Jute press who died in December, 1909 executing a Will dated 11.4.1905 appointing his wife Saraswati Devi as Manager of the business Empress of India Jute Press. 5. 5. The defendants stated that the said lease deed provides that after the expiration of the lease if no option of renewal is exercised, the lessee will yield up the demised land described in Schedule together with building, structure and improvements accretion and addition thereto, provided the lessor pays to the lessee the demolition value of the Godown, building and construction which shall not be removed by the lessee and the valuation of the said Godown, building and structure shall be decided by Arbitration. 6. The defendants also claimed that before expiration of lease deed, they exercised their option of renewal by sending letter to the plaintiff on 29.9.1995 but the plaintiff in-spite of receiving the said letter did not renew the lease and has filed the suit against the defendant, for their eviction on false and frivolous grounds and they have also sent rent to the plaintiff for the month of April, 1996 after expiry of the said lease. So, the plaintiff has no right to file the suit against the defendants before going to arbitration for determination of the value of the structures and the building constructed by the defendants predecessor on the suit property and without making payment of the said value to the defendants and as such not entitled to get any decree against the defendants. 7. The defendants made a counter claim contending that they are lessees in respect of the suit property by virtue of the lease deed with a right of renewal of the said lease which expired on 31st March, 1996. 8. The case as made out in the said application dated 17.8.2017 by the opposite parties for amendment of written statement is as follows— (a) The plaintiffs leased out the piece and parcel of bare land only but the structure and buildings were raised by the lessees and lessees became the owner of the structure and/or became the owner of the structure and building on the suit property. Therefore, the descriptions mentioned in the plaint schedule including the land with structure are totally wrong and contrary to the registered lease deeds. (b) If the lease deeds are interpreted in a meaningful manner as per law it will appear that the lessees are Thika tenants in the suit property and the said right has been conferred upon them by virtue of the Calcutta Thika Tenancy (Acquisition and Requisition) Act, 1981. (b) If the lease deeds are interpreted in a meaningful manner as per law it will appear that the lessees are Thika tenants in the suit property and the said right has been conferred upon them by virtue of the Calcutta Thika Tenancy (Acquisition and Requisition) Act, 1981. (c) It is also contended that the amendment brought in the year 1993 of the said Act the definition of Thika Tenant as to the period of lease was deleted with retrospective effect from 1982 and they have by fiction of a statute the lessee became a Thika tenants. (d) That the lease expired on 30th March, 1996. Consequently the defendants inherited the Thika Tenancy from the lessee as they are heirs and legal representatives of the deceased lessee. 9. Mr. Saptangshu Basu, learned Advocate for the petitioners adverting to the amendment allowed by impugned order submitted that the amendment so allowed in prejudicial to the interest of the plaintiff and has relied on a decision in case of Sumesh Singh v. Phoolan Devi & Ors. reported in AIR 2009 Supreme Court 2831 wherein the case of Gautam Sarup vs. Leela Jetly and Ors. (AIR 2008 7 SCC 85 ) was taken into consideration. It has been held that an amendment of pleadings should not be allowed by reason whereof a party to the suit would resile from the admission made by him in the said proceedings at an early stage. 10. It would be profitable to reproduce the observation made in case of Gautam Sarup (supra) paragraph 28 which reads thus : "28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." 11. Mr. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." 11. Mr. Basu submitted that the defendants have admitted being lessee in respect of the suit property in terms of the lease deed dated 29th April, 1967 in the lease deed, the scheduled property shows that the land together with the structure was given to the lessee, however, with right to utilize the land by permitting to raise construction and on condition of renewal of lease and in breach of valuation conditions of the lease, the lessee is liable to be evicted, accordingly, it is submitted that since the lessees have not exercised their right of renewal as per the clause in the said lease deed, they are liable to be evicted. On the contrary, the defendants/lessees have clearly stated in their written statement that they have exercised their right for renewal and so they have the right to continue in possession and enjoyment of the suit property and not liable to be evicted. 12. In my view, this factual aspects of the case can very well, be decided in the trial but the plea of a legal fiction taken by way of amendment sought for and the amendment being allowed by the impugned order is prejudicial to the plaintiffs because the defendants/lessees are lessees indicated as per the lease deed which is an admitted facts and they are liable to be evicted if they have not exercised their right of further renewal of the lease. 13. Mr. Basu further contended that even if they have exercised their right of renewal of the lease, lease has already expired. So, the defendants/lessees cannot turn around and make out a new case of being a Thika tenant in respect of the suit property by inclusion of a legal plea in their written statement. 14. To fortify his argument, Mr. Basu has referred to a decision in case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander & Ors. reported in AIR 2011 Supreme Court In the cited case the suit was for a suit for title and injunction. 14. To fortify his argument, Mr. Basu has referred to a decision in case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander & Ors. reported in AIR 2011 Supreme Court In the cited case the suit was for a suit for title and injunction. There was amendment subsequently taken out after 11 years of filing of the suit for inclusion of a plea of a specific performance of contract, it was held that amendment cannot be allowed being barred by limitation under Article 54 of Limitation Act and it would amend to relinquishment of that part of claim. In the cited decision it was observed in paragraphs 32, 33, 34, 35 and 36 are as under— “32. We are in respectful agreement with the views of the Full Bench in the abovementioned decision and the principles decided therein are attracted here. 33. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for Specific Performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of Specific Performance in the suit which it filed when it had cause of action to sue for Specific Performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code. 34. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case. 35. Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. 36. 36. Here in this case, the inclusion of the plea of Specific Performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court.” 15. Mr. Basu also relied on a decision in case of M/s. Modi Spinning & Weaving Mills Co. Ltd. and another vs. M/s. Ladha Ram & Co. reported in (1976) 4 Supreme Court Cases 320 wherein the amendment of written statement was sought for was not allowed because the effect of the amendment would be to displace the plaintiffs suit and deprive him of a valuable right already accrued to him. It was held that the defendants cannot be allowed to change completely the case made in the written statement and substitute an entirely different and new case and if such amendment are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. 16. Mr. Haradhan Banerjee learned Advocate for the opposite parties has also relied in the decision of Sumesh Singh (supra) on the observation at paragraph 10 contending that there is no categorical or unequivocal admission as such in the present case. So, the question of defendants resiling from their statement made in their original written statement and amendment so allowed by trial Court does not in effect amounts to resile from the statement made in the previous written statement as there is no categorical admission by the defendants. 17. I have already dealt with the decision in the context of the observation made in paragraph 9 of the cited judgment and that of the judgment in Gautam Sarup (supra). 18. In support of his case Mr. Banerjee also relied on an authority in State of Bihar and Ors. v. Modern Tent House and Anr. (AIR 2017 Supreme Court 4966) wherein it has been observed in paragraph 8 thus : “8. We have perused the amendment application filed by the appellants. 18. In support of his case Mr. Banerjee also relied on an authority in State of Bihar and Ors. v. Modern Tent House and Anr. (AIR 2017 Supreme Court 4966) wherein it has been observed in paragraph 8 thus : “8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises.” 19. I have respectfully considered the decision which is distinguishable from the present case. In this case the defendants prayed for amendment of written statement on the legal plea pertaining to Thika Tenancy (Amendment) Act, 1993 on account of amended definition of Thika tenancy. Mr. Banerjee submitted that amendment so allowed does not take away the plaint case as laid by the plaintiffs/petitioners because the defendants/lessees have made a counter claim by way of amendment of their written statement. 20. Yet, Mr. Banerjee refers to a decision in case of Andhra Bank v. ABN Amro Bank N. V. & Ors. (AIR 2007 Supreme Court 2511) to buttress his stand that amendment of the written statement as has been allowed by the trial Court is only to introduce an additional ground of defence and delay is no ground for refusal of prayer for amendment. 21. (AIR 2007 Supreme Court 2511) to buttress his stand that amendment of the written statement as has been allowed by the trial Court is only to introduce an additional ground of defence and delay is no ground for refusal of prayer for amendment. 21. In the cited judgment, suit was for recovery of Rs.15,66,66,591.00 filed by ABN Amro Bank alleging that the New Delhi Branch of the bank had ordered transfer of one lac numbers of 17% NPC Bonds of Rs.100.00 at a price of Rs.97.00 but the defendant had failed to deliver to the bank the NPV bonds. The defendant had sought for amendment of the written statement contending certain facts pertaining to the issue of NVP Bonds and stating that the suit had been filed to enforce the alleged amendment for recovery of the purchase price of said NPC bonds by the plaintiff in its personal capacity and the plaintiff cannot personally enforce the alleged agreement entered into by the plaintiff on behalf of its principal and prayed for dismissal of the suit as not maintainable. 22. In the above set of facts of amendment of written statement the Hon’ble Apex Court was of the view that while allowing the amendment of pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be necessary for decision of the real controversy between the parties to the suit. It was also observed that only an additional defence in view of Section 230 of the Indian Contract Act was taken. 23. I am of the considered view that the facts and circumstances of the cited decision is not apposite to the facts of the instant case on perusal of the amendment allowed by the Trial Court and in consideration of the averment made in the written statement because amendment so allowed does amount to taking away the admission as made by the defendants/opposite parties herein and I am of the further view that by way of amendment, inclusion of plea of Thika tenancy as per Thika Tenancy (Amendment) Act, 1993 cannot be said to be a new development and an additional defence taken by the defendants about the said Act. 24. 24. I am of the view that the legal plea as to definition clause of Thika tenant in Thika Tenancy (Amendment) Act, 1993 would obviously amount to replacing the plaintiffs case. It is the fundamental rule that every pleading must state facts and not law and the evidence on which a party has to rely and prove in the trial. Parties should not plead conclusions of law or of mixed law and fact. It is for the Court to decide the law arising out of facts in a particular case. 25. Mr. Banerjee also relied on a decision in case of Shyamal Mitra Mustafi v. J. G. Saggi reported in 1988(2) CLJ 429 on the observation at paragraph 8 which reads thus: “8. We dare not, and we also need not, endeavour to make any resume of the numberless precedents on the point for the purpose of the case at hand. But we would only add that any attempt to lay down any set formulas as to when amendments are or are not to be allowed might defeat the very purpose for which the Legislature enacted the provisions of Order 6, Rule 17 with words of wide amplitude. For our present purpose, it would be suffice to note that once the Court finds that the amendment proposed has reasonable and substantial nexus with the matter in issue between the parties, it must hold the amendment to be necessary for the purpose of determining the real question in controversy between the parties and must allow the amendment unless the Court is further satisfied that (a) the parties seeking the amendment is acting mala fide or fraudulently or attempting to over-reach the Court, or (b) the proposed amendment, if allowed, would cause such injustice to the party opposing the same as cannot be compensated in money. All the rules formulated by the Courts over all these hundred years and more prohibiting amendments follow from the one or the other of the two considerations noted above. All the rules formulated by the Courts over all these hundred years and more prohibiting amendments follow from the one or the other of the two considerations noted above. It is not that alteration of the old and introduction of a flea, and inconsistent cause of action or of a case or cause of action already barred by time can never be allowed as a rule of law, but that it may not ordinarily be allowed if it amounts to depriving the opposite party of any right which may have already accrued due by lapse of time and thus causing to him such injury in justice as cannot compensated in costs. If there is no mala fide or fraudulent attempt to over-reach the Court on the part of the parties seeking amendment and no likelihood of irreparable injury to the opposite party, a party should not be refused amendment provided the same appears to be necessary for the determination of the real controversy between the parties. The world of law is still dominated by enigmatic esoferism where only a trained lawyer can afford to move and the plethora of laws, both legislative and judicial, have made it such a quagmire that even about such trained lawyer, Vivian Bose, J., in the Supreme Court decision in Seksaria Cotton Mills, AIR 1953 SC 278 at 281 had to observe that "the more learned their advisers were in the law the more puzzled they would he as to what advice to give". We must not penalise the party if his lawyer has blundered and could not or did not draft the original pleadings in a manner he ought to have.” 26. In case of Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. In Appeal (Civil) 5350-5351 of 2002 decided on 22nd March, 2006, Hon’ble Apex Court taking into consideration the provision of Order 6, Rule 17 of CPC observed thus— "This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side." 27. The case made out in the cited decision is distinguishable from the instant case inasmuch as, in the case above, the suit was filed for decree of declaration, permanent injunction, and mandatory injunction directing the defendant to handover the relevant Bonus share certificate or any amount of GPI to the Secretary of the Trust in which such, an amendment sought for was to incorporate relief of mandatory injunction directing the defendant to sell the share of GPI held by Trust and use the sale proceeds thereof for the benefit of the beneficiaries. Such amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. Such is not a case in hand, because, the defendants have successively sought for amendment of the written statement and it cannot be said that there has been a subsequent development in the suit. The defendants appear to have taken successive amendment of their written statement to dislodge the trial of suit of the plaintiff who has prayed for decree of eviction of the defendants and recovery of khas possession of the suit properties with a decree of mesne profits as per the lease deed. 28. I do not have any dispute in regard to the proposition on the amendment of pleadings but for the reasons stated above I am of the concluded opinion that the proposed amendment of the written statement would cause injustice and is prejudicial to the plaintiffs. 29. 28. I do not have any dispute in regard to the proposition on the amendment of pleadings but for the reasons stated above I am of the concluded opinion that the proposed amendment of the written statement would cause injustice and is prejudicial to the plaintiffs. 29. Issue is whether the defendants as lessees are Thika tenants in respect of the suit property by virtue of Thika Tenancy (Amendment) Act, 1993 with respect to the definition of Thika tenant by fiction of a statute is a legal issue which may be open to the parties to the suit for discussion in accordance with the evidence to be adduced by the parties but such amendment ought not have been allowed because plea on the point of law are not required to be averred in the pleadings, inasmuch as the parties to the suit have pleaded their facts in detail. 30. Issues as to whether as per renewal clause in the said lease deed, lessees/defendants herein have exercised their right of renewal of the said lease which expired on 31st March, 1996 and whether dispute between the parties is referable to arbitration for decisions are the issues to be decided by the trial Court on the evidence yet to be recorded in the trial. 31. Conclusively, I hold that the trial Judge has erred in law and in fact by allowing the amendment pertaining to legal plea on Thika Tenancy (Amendment) Act, 1993 and the order impugned suffers from merit and is thus, liable to be inferred with. 32. Therefore, the revisional application being C.O. 3226 of 2017 is hereby allowed with costs. 33. Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.