Amendment of pleadings, including the plaint, is permissible at any stage of the suit, provided it does not change the cause of action, deprive the other party of a right vested in it to its prejudice resulting in injustice and prejudice, and does not necessitate or result in taking of any further evidence in the case.

U.C. Srivastava, J.

1. This is second application for amendment of the plaint moved in the Second Civil Appeal. By means of the amendment application to which not only objection has been filed but has been seriously opposed, the plaintiff-appellants have prayed for amendment of the plaint in paragraphs pertaining to payment of court fees and valuation of the suit and the relief clause by addition of relief for declaration as owner of the house in question regarding which conseqential relief of recovery of possession and realisation of damages is found to be existing.

2. The plaintiff-appellant No. 2 claiming himself as owner landlord of House No. 151/52 having purchased it from plaintiff-appellant No. 1 who had earlier purchased it from its owner Murlidhar vide registered sale deed of the year 1976 and alleging defendant-respondent as tenant filed a suit for arrears to rent and for damages for use and occupation till ejectment of defendant. Relief for ejectment was non distinctly mentioned in the relief clause though the suit was entitled as suit for arrears of rent and ejectment and notice preceding the same was also for ejectment. The defendant-respondent filed a written statement taking it to be suit for ejectment but pleaded that he himself was owner of House No. 151/52 the boundaries of which on two sides did not tally with the description given by plaintiff-appellant though at the same time also where it was mentioned that he himself was owner in possession of house in suit. His claim for owner-ship was based on an unregistered will said to have been executed in his favour by said Murlidhar who had earlier allowed him to reside in the house though not as a tenant. It was pleaded that as the dispute was regarding ownership the court had no jurisdiction to try the suit and plaintiff should file a suit for declaration instead of arrears of rent and ejectment. In view of plea of jurisdiction the plaintiff-appellant took back the plaint and filed it again before the Court of Munsif. Incidentally the written statement was also returned to plaintiffs which too was filed by him along with the plaint. The trial court framed an issue regarding the ownership of defendant-respondent. The Parties tendered oral and documentary evidence in support of their claim for ownership. The plaintiff filed sale deed executed by previous owner and the defendant filed an unregistered will said to have been executed by the very same person in his favour though the date of same was subequent to the date of sale deed relied upon by plaintiff. Both denied the documents filed by either party. The trial court decreed the suit but the lower appellate court allowed the appeal and dismissed the suit whereafter this second appeal was filed.

The plaintiff-appellants during the pendency of this appeal prayed for amendment of the plaint for adding the relief which according to them inadvertently could not be mentioned. The amendment was allowed. The appeal was to be heard and disposed of finally and before that the present amendment application which even contains unnecessary irrelevant and uncalled for matter and allegations, was moved. The objection of the defendent- respondent is in view of Section 102 C. P. C. The suit being of small cause court nature second appeal is not maintainable and the same cannot be converted into revision as has been prayed in the alternative by appellant. The amendment application is not supported by an affidavit and suit for arrears of rent and ejectment cannot be converted into suit for declaration and that too without any consequential amendment and that ad valorem court fee is payable and that amendment in second appeal is not permissible. During the course of arguments usual objection were raised

3. An amendment can be applied for at any stage of suit including at the stage of second appeal which will be evident from the provisions of Order 6 Rule 17 of the Code of Civil Procedure which itself provides for at any sta