JUDGMENT
Krishna Saran Srivastav, J.
1. This is defendant’s revision against the order passed by the Subordinate Judge, Addanki, in IA No. 460/1990 in AS No. 18/1987, whereby the application of the petitioner-defendant for amendment of the written statement has been rejected.
2. The respondent-plaintiff obtained a money decree against the petitioner-defendant. Being aggrieved by the said judgment and decree, the petitioner-defendant preferred appeal bearing No. AS 18/1987. On 8-10-1990, the petitioner-defendant filed an application for amendment of the written statement under Order 6, Rule 17 of the Code of Civil Procedure, stating that the plaintiff is not a small farmer as per the provisions of the Act 7 of 1977 and the Act 45 of 1987, that this defendant is a small farmer and cultivator and has no other source of income except agricultural income and that as such the suit debt, even if proved to be true, is not valid and binding and hence the suit debt is abated as per the provisions of the aforesaid Acts.
3. The respondent-plaintiff denied the allegations made by the petitioner-defendant in the application for amendment of the written statement and pleaded that he had already alleged in the plaint that the defendant is not a small farmer entitled to the benefits of the Acts, but the petitioner-defendant has not contradicted that allegation and, therefore, he should not be permitted to amend the written statement by filling of lacunae.
4. The lower appellate Court rejected the application for amendment of the written statement mainly on the ground that it has been filed belatedly.
5. Feeling aggrieved by the impugned order, the defendant has preferred this revision.
6. It is urged on behalf of the petitioner that the merits of the proposed amendment should not be considered for permitting or not permitting the concerned party to amend the pleadings. It is further urged that merely on the ground of delay in filing the application for amendment, it should not be disallowed. Because the Act of 45 of 1987 had come into force with effect from 1-1-1988, the question of taking protection under the said Act was not available during the pendency of the suit.
7. On the other hand, it is submitted by the learned Counsel of the respondent-plaintiff that the petitioner-defendant had testified before the trial Court that he owns Ac. 20 of wet land and Ac.10 of dry land and, therefore, he is not entitled to get the benefit under the Act 45 of 1987. The proposed amendment application has been filed two years after the date of the enforcement of the Act 45 of 1987 and, therefore, the lower appellate Court has rightly rejected the application for amendment of the written statement.
8. The application for amendment of the written statement has been disallowed during the pendency of the appeal and without hearing the parties to the appeal on merits. The lower appellate Court has mentioned the arguments of the learned Counsel of the defendant and the contention of the learned Counsel of the plaintiff in Paras 5, 6 and 7 of its order and in the concluding line of the impugned order, it has stated that the application for amendment has been filed very belatedly and, therefore, there is no merit in the petition and dismissed the same in Para 8 of its Order. The lower Appellate Court has not given reasons for reaching the conclusion that the proposed amendment of the written statement is not necessary for deciding the real question in controversy and/or whether it will cause injustice to the plaintiff-respondent. The lower appellate Court did not state whether it has heard the appeal on merits.
9. It is beyond comprehension how the appellate Courts are able to decide the applications for amendment when they have no idea whatsoever about the merits of the appeal. After the appeal is heard on merits, then the lower appellate Courts should decide whether the application for proposed amendment should be allowed or not. The question whether a party should be allowed to amend its pleadings at the appellate stage cannot be decided until the appeal is heard on merits, because after hearing the appeal on merits, the lower appellate Court can effectively decide whether the proposed amendment is necessary or not for deciding the question in controversy between the parties to the appeal as also whether the application is bonafide or not.
10. The question whether the petitioner-defendant was a small farmer on the date when the Act 7 of 1977 and/or Act 45 of 1987 had come into force, appears to be an important question to be decided and for that whether necessary particulars in the proposed amendment have been given or not is to be considered after hearing the merits of the appeal as this factor is important to conclude whether the proposed amendment is necessary or not.
11. For the foregoing reasons, the revision is allowed. The impugned order is set aside and the lower appellate Court is directed to decide the application for amendment in the light of this order after hearing the appeal on merits. In the circumstances of the case, the parties are directed to bear their own costs of this revision petition.