M. Thamaraiselvi vs Latha and Another

S. Palanivelu, J.—The petitioner is the plaintiff in O.S. No. 444 of 2008 on the file of the District Munsif Court, Pudukkottai. Pending trial of

the suit, she filed an application under Order 6, Rule 17 C.P.C. for amending the plaint by inclusion of a property which was omitted to be

included originally. In the affidavit, she has stated that the omission was not due to the indifference on the part of the petitioner. The four boundaries

mentioned in the plaint would also include the omitted extent of 1/2 ares in Survey No. 939/11. Hence, the amendment may be allowed. The

petition was resisted by the defendants by filing counter stating that the petitioner has already filed O.S. No. 20 of 2009 with regard to the entire

extent in S. No. 939/11 and hence, the present application may be dismissed. After hearing both parties, the learned District Munsif, Pudukkottai

has dismissed the application by observing that in case of amending the plaint, the nature and character of the suit would be altered and that in view

of the pendency of O.S. No. 20 of 2009 with respect to Survey No. 939/11, the amendment would not be allowed. Challenging the order, the

petitioner is before this Court.

It is true that the petitioner has filed O.S. No. 20 of 2009 with respect to entire extent in Survey No. 939/11 but it is the definite version that the

omitted portion i.e. 1/2 ares in Survey No. 939/11 is included in the properties which is available within four boundaries mentioned in the present

plaint. In this context, there could be no impediment for allowing the application. By means of amending the plaint, the defendants would not be

prejudiced. Further, the amendment will not alter the cause of action, nature and character of the suit.

The learned counsel for the petitioner placed reliance upon a decision of this Court in Hathija Rani and Others Vs. S. Nasira Babu and Another,

in which it is held that even if the proposed amendment sought by the respondents/plaintiffs herein will change the description of property and also

the location and nature of the property and the alternative relief of possession will deprive the defendants about the maintainability of the suit, even

then the amendment can be allowed subject only to the question of limitation. He also cited a judgment of mine in C.D. Varadarajan Vs. S. Mohan

and M. Punithavathi, wherein I have observed that even though the amendment is being brought after the commencement of the trial, it is to the

effect of clarifying the description of property and making the particulars in the schedule in an explaining manner properly, this Court is of the

considered opinion that no question of limitation would arise. Allowing of the application would in no way prejudice the rights of the petitioner. It is

also added that it could not be stated that the petitioner has accrued any right with the mis-description of the property and by means of

incorporation of the amendment their rights would be affected. It is obvious that there could be no change in the nature of the suit, no alteration in

the nature, character and the cause of action of the suit. There could also be no possibility for different cause of action to creep in.

In view of the above, I find no justification in refusing the amendment. In such view of this matter, the order passed by the Court below is liable

to be set aside and it is accordingly set aside. In fine, the civil revision petition is allowed. I.A. No. 1286 of 2009 in O.S. No. 444 of 2008 on the

file of the District Munsif Court, Pudukottai is allowed. Consequently, connected miscellaneous petition is closed. No costs.