Gunasekaran vs Selvaraj

G. Rajasuria, J.—Animadverting upon the order dated 12.12.2005 passed by the learned District Munsif cum Judicial Magistrate, Neyveli,

in I.A. No. 663 of 2005 in O.S. No. 305 of 2004, this civil revision petition is focussed.

Despite printing the name, the respondent did not appear.

An epitome and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would

run thus:

The revision petitioner/plaintiff filed the suit for recovery of money based on pro note. The defendant entered appearance and filed his written

statement. The trial commenced. The plaintiff adduced evidence. At that time, he came to understand that instead of specifying the date of pro note

as 07.12.2001, erroneously it was typed as 10.12.2001. Such mistake crept in even in the pre suit notice also. Hence I.A. No. 663 of 2005 was

filed before the learned District Munsif cum Judicial Magistrate, Neyveli seeking amendment, whereas the lower Court dismissed it. Being

aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds.

The learned Counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that a clerical

error crept in and it is not an amendment so as to change the cause of action or the nature of the suit and further more the defendant''s plea is that

pro note itself is a concocted one.

Perused the order of the lower Court.

The lower Court construed as though a serious amendment was sought to be effected in the plaint and in view of the same, the trial Court

dismissed after discussing in extenso various points, which in my opinion are all unwarranted. No doubt, Order 6 Rule 17 of C.P.C. imposes an

embargo for an amendment after commencement of trial. However, the proviso to it envisages that in some exceptional cases such amendment

could be allowed even after the commencement of trial. Here it is the defendant''s case that neither on 10.12.2001 nor on 07.12.2001 any pro

note emerged. It is the case of the defendant that suit pro note itself is a concocted one and it is not as though the defendant contended on

07.12.2001 some other transaction emerged and now the plaintiff wants to fit into it the pro note. Hence I am of the view that such a prayer for

amending the clerical error could be granted.

I am fully aware of the fact that consequent upon such allowing, the defendant may have to file additional written statement which also shall be

permitted to be filed and thereupon if any additional issue has to be framed, the same also could be framed and additional evidence could also be

taken in this regard and after hearing both sides, the matter could be disposed of on merits. Accordingly the order of the lower Court is set aside

and the I.A. is allowed to the limited extent of amending the plaint to the extent of specifying the date of pro note as 07.12.2001 instead of

10.12.2001 and it is obvious that no amendment relating to the date of pre suit notice in the plaint could be allowed.

Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.