An appellate court has the power to allow an amendment of pleadings, even if the amendment is made at the appellate stage.

( 1 ) THIS Rule is directed against Order No. 47 dated March 2, 1979 passed in Title Suit No. 195 of 1976 by the Munsif, 4th Court, Alipore reiecting an application for amendment of the written-statement filed by the defendant No. 1. The suit was instituted by the opposite party No. 2 against the petitioner and the remaining opposite parties for declaration of title and for a permanent iniunction restraining the petitioner from making construction complained of. It was alleged that the petitioner who was a purchaser of a portion of the house was trying to put a reinforced concrete beam on a wall for the purpose of supporting the roof and this was causing damages to the plaintiff's portion of the house. In the written-statement filed by the petitioner the allegation made by the plaintiff opposite party No. 1 was denied and it was asserted that the wall in question did not belong to the plaintiff, but it was a common wall. The plaintiff deposed in the suit as P. W. 1 on February 20, 1979 and in his cross-examination he produced a partition deed including a plan for the purpose of showing the respective portions belonging to the parties. On February 22, 1979 an application for amendment of the written-statement was filed by the petitioner alleging that from the plan produced by the plaintiff in course of his evidence the petitioner came to know that the wall in question was not a common wall, but it belonged to him. The learned Judge rejected the application for amendment of the written-statement on the ground that it militates against the admission made by the petitioner that the wall was a common wall. Against the said order the petitioner has obtained the present Rule,

( 2 ) MR. Mitra, learned Advocate for the petitioner, has contended that in the present case there was no admission made by the petitioner in the written-statement as originally filed by him that the wall in question was a common wall. He has contended that what was stated by the petitioner in the written-statement as originally filed by him was that the wall in question did not belong to the plaintiff as claimed by him and that it was a common wall. That was not really an admission that the wall was a common wall, but it was merely an assertion denying the plaintiff's claim that the wall belonged to the plaintiff. The amendment sought for by the petitioner stating that the wall belonged to him was not in any way inconsistent with any alleged admission made by him. It was contended that in any event, the amendment should have been allowed in order to decide the real controversy between the parties to the suit. He has relied upon the decision in Ishwardas v. State of Madhya Pradesh reported. that case the Supreme Court observed as follows:"there is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided ia already there, the amendment may be more readily granted than otherwise. Exit, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the court. "

( 3 ) MR. Mitra also referred to the deci-sion in Shikharchand Jain v. Digamber Jain Praband Karini Sabha reported. In that case the Supreme Court observed at para 11 of the judgment as follows:"ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a court including