Judgement

S. K. DAS, J. - This is an appeal by special leave from judgement and decree of the High Court of Bombay dated 6-9-1951, by which the said High Court set aside on appeal the decree passed by the Civil Judge (Senior Division) Kolhapur, in civil suit No. 23/49 and allowed an amendment of the plaint at the appellate stage, subject to certain conditions, in the circumstances stated below.

2. The appellant before us was defendant 1 in the suit. Respondents 1 and 2 are the heirs of the original plaintiff and respondent 3 was defendant 2 in the action. In 1942 the original plaintiff filed a suit against respondent 3 for possession of the suit properties and obtained a decree in ejectment on 28-3-1944. This decree was confirmed in appeal on 9-7-1945. On a further appeal, the then SC of Kolhapur affirmed the decree on 2-4-1946. In the mean-time, the original plaintiff made an application for execution of the decree but was resisted or obstructed by the present appellant in obtaining a possession of the said properties. He then made an application under O. 21, R. 97, Civil P. C. complaining of such resistance or obstruction. This application was heard and dismissed under O. 21, R. 99, Civil P.C., on 12-4-1947. On 12-3-1948 the original plaintiff instituted the suit (out of which this appeal has arisen) under O. 21, R. 103 Civil P. C., for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as defendant 1.

3. Prior to its amendment, the plaint stated: "Defendant 2 in collusion with defendant 1 caused objection to be submitted against the said execution. The plaintiff had conducted Misc. Suit No. 5/1946 for getting the objection of the suit properties, getting the objection removed. However, that miscellaneous proceeding has been decided against the plaintiff. Therefore, the plaintiff has filed the present suit for getting declared that the plaintiff has right to take possession of the suit property against defendants 1 and 2."

Apart from the decree obtained in the earlier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his title to the properties in suit as against the appellant. An application was made on behalf of the present appellant on 20-11-1948, in which it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present appellant was not a party. It was then stated:

"As the defendant is not a party in the said decree, the plaintiff will not acquire any ownership whatever against the defendant from the said decree. And the plaintiff has not given even the slightest explanation as to how he was ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership."

A copy of this application was made over to the learned pleader for the plaintiff who noted thereon as follows:

"The plaintiff s suit is under O. 21, R. 103, Civil P.C. Hence relief which can be granted as per this provision may be granted."

An objection was also taken with regard to the description of the suit properties in the schedule. This objection was however met by making the necessary amendment.

4. On 20-12-1949, the present appellant filed his written statement and, inter alia, took the objection that the suit was not maintainable against him, as the plaint disclose no cause of action so far as he was concerned. A preliminary issue was then struck on 19-1-1950, which raised the question whether the suit as framed was tenable against the appellant. When the trial of this issue began, an application was made on 29-3-1950, on behalf of the original plaintiff for permission to give further and better particulars of the claim made in the plaint, and for that purpose the plaintiff wanted to insert a new paragraph be Para.1 (a) in the plaint and a few sentences in Para.3. It is necessary to quote these here because th