A defendant in an eviction suit may be allowed to amend his written statement to specifically plead part performance under Section 53A of the Transfer of Property Act, even if such a plea was not specifically taken in the original written statement, provided that the foundation for such a plea was laid in the original written statement and the amendment is not immaterial or useless and is necessary to determine the real controversy between the parties.

1. THIS appeal is directed against the judgment and decree dated 26th June, 1988 passed by the learned Additional District Judge, 7th Court, Alipore, in Title Appeal No. 197/87 affirming those dated 27th January, 1987 passed by the learned Munsif, 2nd Court, Baruipur in Title Suit no. 223/86.

2. THE plaintiff-respondents instituted the said suit against the tenant-defendant for eviction upon determination of the tenancy by a notice to quit under Section 106 of the Transfer of Property Act. The tenancy was governed by the Transfer of Property Act and not by the West Bengal Premises Tenancy act. The defendant was a monthly tenant in respect of the suit premises at a monthly rate of Rs.80 payable according to English Calendar month. Though redundant, the plaintiff pleaded default in payment of rent since January, 1974, unauthorised construction by way of addition or alteration in the suit premises without knowledge and consent of the plaintiffs and reasonable requirement of the suit premises for their own use and occupation as grounds of ejectment. The defendant contested the suit toy filing a written statement. The defence case was that on 27. 9. 84 S. D. Mukherjee received a sum of Rs.10,251/ - by way of advance for sale of the suit premises at the agreed price of Rs.30,000/- and he executed an agreement for sale of the suit property. In the said agreement for sale it was stipulated that the purchaser would continue to enjoy the possession and raise kitchen garden and take the yield from the trees already there pending registration of the sale deed. Late S. D. Mukherjee died without the conveyance being completed. Though specific plea under Section 53a of the Transfer of Property Act was not taken in the written statement, it appears that this plea was raised both at the time of trial and at the time of hearing of first appeal. Both the Courts below negatived the plea and the decree passed by the Trial Court was upheld by the lower Appellate court.

3. MR. Roy Choudhury, learned Advocate for the appellant has strongly contended that the petition of amendment of the written statement dated 26. 7. 85 containing specific plea of part performance under Section 53a of the transfer of Property Act was wrongly rejected by the Trial Court. It has further been contended that the lower Appellate Court was wrong in rejecting another application under Order 6 Rule 17 C. P. C. dated 17. 3. 88 praying for the amendment of the written statement on the ground that defendant could not be permitted to change his defence by way of amendment of the written statement as sought for. It has been contended that though the plea under section 53a is not specifically taken in so many words in the written statement there is clear foundation of such a plea to the written statement and the lower appellate Court was wrong in holding that by the amendment the defendant wanted to put up altogether a new defence. It has been contended that in the absence of the amendment and specific tissue the defendant could not adduce evidence on all the ingredients of Section 53a of the Transfer of Property Act and the lower Appellate Court was unfair in observing that the defendant could not adduce evidence to show that he was all along ready and willing to perform his part of the contract.

4. THE contention of Mr. Roy Choudhury has substance and must be accepted. With regard to the scope of amendment of a written statement I may refer to the observations of P. B. Mukherjee, J as he then was in Nrisingh prasad Paul vs. Steel Products Ltd, AIR 1953 Cal 15. amendment of a plaint and amendment of a written statement are not necessarily governed be exactly the same principles. Some important general principles are certainly common to both, such as the application for amendment whether of a plaint or a written statement must be bona fide and must also be for the purpose of determining "the real controversy" between the parties and where it is just. But the rule that the p