IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2264 of 2006 DASRATH MAHTO son of Bhetari Mahto, resident of mohalla Kesra Bazar, Town, P.O. & P.S. Lalganj, District Vaishali … … Defendant/Respondent/Petitioner Versus MANOJ KUMAR son of late Jagarnath Prasad, resident of mohalla Agarpur, P.O. & P.S. Lalganj, District Vaishali… ..Plaintiff/Appellant/Opposite Party For the Petitioner: M/s Naresh Chandra Verma and Arun Kumar Lal, Advocates For the Opp.Party:Mr. Raj Shekhar, Advocate … 2 03.09.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. This civil revision is being disposed of at this stage with the consent of the parties. The petitioner is aggrieved by order dated 17.11.2006 passed by the District Judge, Vaishali at Hajipur in Eviction Appeal No. 1 of 2004. The opposite party filed the aforesaid appeal against the judgment and decree dated 15.12.2003 passed in Eviction Suit No. 12 of 1995, dismissing the same on the ground that there was no relationship of landlord and tenant in between the parties. In the appeal aforesaid the opposite party filed a petition under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint of the suit 2 concerned. The amendment petition has been brought on record as annexure 1 to the supplementary affidavit. It has been stated by the plaintiff –appellant-opposite party therein that the plaintiff had claimed the suit property on the basis of deed of gift executed by his grand-father, Gina Sah, in his favour, but the son of Gina Sah, namely, Jagarnath Sah(father of the plaintiff-appellant-opposite party) had died and, thus, the appellant had inherited all the properties of Gina Sah. In view of that, the appellant wanted amendment in the plaint by adding a paragraph to the effect that after the death of his father, Jagarnath Sah, he, being the sole heir and legal representative, had, as a consequence inherited the entire property of Gina Sah. Learned counsel for the petitioner submitted that the order was admittedly passed without hearing him, which would be evident from order dated 19.06.2004, as contained in annexure 2. It had further been submitted that neither the service report of the notice issued upon the petitioner was received nor the lower court record, earlier called for, could be received by the court concerned. However, the amendment petition was allowed ex parte. The petitioner after entering appearance in the 3 appeal filed a petition for recall of that order, but the prayer had been rejected by the appellate court by the impugned order. It was submitted that the issue between the parties was as to whether, on the date of determination of controversy, there was a relation of landlord and tenant in between them. The issue had been decided in negative by the trial court. Learned counsel for the opposite party submitted that now the opposite party had acquired title over the property in dispute, as he had inherited the same after the death of his father. Therefore, the aforesaid fact was necessary to be incorporated in the plaint. On perusal of the impugned order, it appears that the court below has not recorded any finding with regard to the necessity of such amendment in the plaint of the suit at the appellate stage and also with respect to some other issues raised by the petitioner, rather it had only rejected the recall/review petition on the ground that the amendment is not going to change the nature of the suit. In view of the above, this Court is of the opinion that the court below should have examined the matter with respect to the necessity of amendment in question in the 4 plaint at the appellate stage and other issues raised by the petitioner, as the amendment was admittedly allowed ex parte on 19.06.2004. As a result, I set aside the order dated 19.06.2004. The appellate court concerned is directed to consider the issue in question afresh after hearing the parties and pass a reasoned order in accordance with law. Accordingly, this civil revision is allowed. SC ( Dr. Ravi Ranjan, J.)