JUDGMENT

D. S. Bajpai, J. - This defendants second appeal under section 100 of the Code of Civil Procedure challenges the judgment and decree dated 6779 passed by the Civil Judge, Sitapur, dismissing Civil Appeal No. 56 of 1977 affirming the judgment and decree dated 161276 passed in plaintiff's suit no. 148 of 1971 with some modifications.

2. Facts giving rise to this second appeal, as are material for the decision of this second appeal, are that the plaintiff filed original suit no. 148 of 1971 against the defendants for a declaration that the room marked as '? ? ? ?' in the siteplan annexed as part of the plaint was held by defendants 1 and 2 as the plaintiff's tenants on a monthly rent of Rs. 6.75P. and for a decree of Rs. 243/ for recovery of arrears of rent against the said defendants. It was further claimed that the gallery in the siteplan was the plaintiff's passage and that an injunction be issued restraining the defendants 3 to 11 from using this gallery. Subsequently,, in place of defendant no. 3 defendants 3/1 to 3/7 have been impleaded in place of the deceased defendant no. 3 and defendants 4/1 and 4/2 in place of defendant no. 4. The trial court decreed the suit in terms of judgment and decree referred to herein above. During the trial the defendant no. 3/8, it appears, filed an application for amendment of the writtenstatement, 115Ka dated 20876 under Order VI, Rule 17 of the Code and prayed for insertion of the plea by adding some sentence in paragraph 33 of the writtenstatement, The plea sought to be incorporated was that after the family partition of 1946 neither the plaintiff nor his predecessor Bhola Nath or his father Jai Narain was ever in possession of the room and/or gallery in dispute and if he had any rights in them, they stood extinguished since the defendants had matured their right by adverse possession and as such the suit for declaration was not maintainable and was barred by time. This application for amendment was rejected by order of the court dated 41276 on which date the court proceeded to frame an issue no. 5, The same day the court rejected it on the technical plea that no affidavit had been filed along with the application fixing 61276 for arguments on issue no. 5. On 61276 the court recorded the statement of the Counsel for the respective parties that no evidence was to be adduced on issue no. 5 fixing 81276 for arguments. Thereafter on 81276 the court directed the case to come up on 131276 for further hearing and on 161276 the court passed the judgment and decree giving rise to the Second Appeal No. 56 of 1977. The lower appellate court vide its order dated 6779 modified the decree to the extent that arrears of rent of Rs. 243/ be realised from defendant nos. 3 to 11 and not from defendant nos. 1 and 2. The other part of the decree of the trial court was affirmed.

3. I have heard learned Counsel for the parties and perused the records of the two courts below.

4. It has been argued by the learned Counsel for the appellants that the trial court having rejected the application for amendment prejudiced the defendants' case, more so when the trial court has observed in its judgment that no such plea sought to be brought by the proposed amendment has been raised by the defendants in their writtenstatement. He has further submitted that in view of this legal infirmity which was a substantial question of law, the judgments of the two courts below deserve to be set aside. I find substance in this p ea, more so when the courts below had neither recorded the evidence nor did the plea sought to be raised required adjournment of the case for a long time and this plea went to the root of the matter in taking this view. It will be worthwhile to consider the case of Ishwardas v. State of Madhya Pradesh (AIR 1979 Supreme Court 551) in which the Supreme Court was pleased to take the view that amendment of pleadings should not be refused and, in fact, amendment of pleadings have been permitted even at the ap