Anil Kumar Sinha, J.—Heard Mr. Vinod Singh, learned counsel for the petitioner and Mr. Chandra Kant, learned counsel for the plaintiff/respondent.

2. The petitioner is defendant in Title Suit filed by the plaintiff/respondent bearing Title Suit No. 78 of 1997. The Title Suit has been filed for declaration that the gift deed dated 7.12.1993 executed by one Kedar Sah in favour of the defendant/petitioner, is forged, fabricated, sham document and the same be declared illegal, null and void.

3. One Moti Sah who is the father of Chotelal Sah, plaintiff and Kedar Sah, executed gift deed in favour of the defendant/petitioner. While challenging the gift deed, various grounds have been taken by the plaintiff including the ground that there was no intention of Kedar Sah to execute the gift deed in favour of the defendant No. 1 and he never executed the same, as such, no occasion had arisen in favour of the defendant No. 1 to accept the gift given by Kedar Sah.

4. The suit filed by the respondent/plaintiff was dismissed by judgment and decree dated 19.9.2003 and an appeal bearing Title Appeal No. 110 of 2006 has been filed by the plaintiff/respondent which is pending before the 1st Additional Sessions Judge cum Special Judge, Siwan. The petition for amendment has been filed at the appellate stage by the plaintiff/respondent which has been allowed by the impugned order dated 27.7.2019.

5. While assailing the impugned order, learned counsel appearing for the petitioner submits that the learned District Appellate Court has committed material irregularity by allowing the amendment at the appellate stage inasmuch as it will give rise to de novo trial and will also seriously prejudice the petitioner. Learned counsel further submits that the ground of typographical error which has been taken by the plaintiff/appellant in order to bring the amendment at the appellate stage, is not tenable inasmuch as by way of amendment at the appellate stage, the plaintiff wants to add a new ground to challenge the gift deed whereas the various ground for challenging the gift deed has already been taken by the plaintiff which would be evident from paragraph-15 of the plaint. He next submits that the ground which the plaintiff wants to add by way of amendment in the plaint at appellate stage, was very much available to the plaintiff, but the plaintiff has failed to show his due diligence and has tried to introduce a fresh ground at advance stage of the appeal in order to delay the disposal of the appeal. Accordingly, submission is that the amendment brought by the plaintiff is not bona fide. In his support, learned counsel relies upon the judgment of Hon’ble Supreme Court, in the case of J. Samuel vs. Gattu Mahesh, reported in (2012) 2 SCC 300 [: 2012 (2) BLJ 215 (SC)], and in the case of Mashyak Grihnirman Sahkari Sanstha Maryadit vs. Usman Habib Dhuka, reported in 2013 (2) PLJR 356 (SC).

6. On the other hand, learned counsel for the respondent/plaintiff submits that the proposed amendment will not change the nature of the suit as well as cannot be treated as a new ground for challenging the gift deed. According to the plaintiff/respondent, the gift deed has been challenged on various grounds including the grounds that the donor did not execute the gift deed willingly and intentionally. The present amendment has been brought by way of clarification of the grounds which have already been taken in the plaint.

The proposed amendment is clarificatory and explanatory in nature and does not deviate from the ground which has already been taken by the plaintiff in the plaint. Learned counsel next submits that the clarificatory facts which the plaintiff wants to add, is that the donor of the gift deed, namely, Kedar Sah, was an educated person used to read and write also and there was no occasion for him to put his thumb impression on the gift deed. Kedar sah has executed many sale deeds, in which, he has put his signature and one of those sale deeds has been filed by the pet