The jurisdiction of the lower appellate court to consider an amendment application before the conclusion of arguments in the appeal.

Kuldip Singh, J.—This appeal is against the judgment dated 7.7.2001 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 8 of 2001.

2. The brief facts are that Jai Kishan plaintiff filed a suit for permanent prohibitory injunction against Devki Nand defendant, restraining him from interfering in any manner in the use of path by plaintiff which passes through khasra Nos. 17, 49/1, 50/1 and 51/1. The suit was contested by defendant and was dismissed by learned Sub Judge 1st Class Rampur Bushahr on 14.3.2001. The plaintiff filed an appeal against judgment, decree dated 14.3.2001 and in the appeal plaintiff filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of plaint. The plaintiff wanted to plead more facts in para-1 of the plaint and he wanted to add paras 1-A and 2-A also in the plaint. This application was opposed by defendant. The learned District Judge allowed the amendment application on 7.7.2001 and remanded the suit to the trial Court for disposal in accordance with law. The defendant is in appeal in this Court against judgment dated 7.7.2001.

3. The learned Counsel for the appellant has submitted that after conclusion of the arguments the amendment application was filed before the lower Appellate Court and therefore, the application was not maintainable. He has submitted that the lower Appellate Court has ordered open remand without recording a finding whether additional issues emerge from the amendment or further evidence is required after amendment. In alternative he has submitted that at the most the District Judge should have given clear direction to the trial Court regarding framing of fresh issues or recording of further evidence, if so required. The District Judge has ordered retrial without considering the case whether any further evidence is required in the case or not. The learned Counsel for the respondent-plaintiff has supported the impugned judgment.

4. The plaintiff filed the suit for permanent prohibitory injunction on the ground that he is owner in possession of land comprised in khasra Nos. 16 to 23, situated in mouza Khatkar, Tehsil Kumarsain, District Shimla. On khasra Nos. 18 to 21, the plaintiff has his house, compound, water tank and there is a passage from khasra Nos. 17, 49/1, 50/1 and 51/1 which is used by plaintiff and his family for ingress and egress to his house for the last 35 years continuously without any interruption, as a matter of right and an easement. The defendant has no legal right to cause obstruction or destroy the path in any way.

5. The plaintiff to make his pleas more explanatory proposed amendment in para-1 of the plaint and additions of paras 1-A and 2-A in the plaint. In para 2-A, he wanted to add in alternative plea of easement by way of necessity also.

6. The arguments in appeal were heard by the learned appellate Court on 31.5.2001 and the case was fixed for orders on 12.6.2001. The appeal was taken up on 8.6.2001 as the appellant-plaintiff filed an application under Order 6 Rule 17 read with Section 151 CPC, thereafter reply to the amendment application was called and on 6.7.2001 arguments in appeal along with amendment application were heard and on 7.7.2001 the impugned judgment was passed allowing the amendment application and remanding the case to the trial Court. The learned Counsel for appellant/defendant has submitted that after conclusion of arguments in the appeal the amendment application was not maintainable and he has relied on 2000 (1) S.L.J. 404 in Smt. Savitri Devi and others v. Gauri Dutt case. In Smt. Savitri Devi case appeal was not reheard along with amendment application and therefore this Court has held that application for amendment was not maintainable after conclusion of arguments. In the present case facts are different.

7. The amendment application was filed on 8.6.2001 when arguments in appeal were already heard on 31.5.2001 but the appeal was reheard along with the ame