This Civil Revision Petition has been filed against the order and decreetal order in I.A.27 of 2007 in A.S.No.32 of 2002 on the file of the Subordinate Judge, Hosur dated 08.04.2008.
2. The petitioner is the plaintiff in O.S.No.85 of 1995 and appellant in A.S.No.32 of 2007. The respondents are the defendants in O.S.No.85 of 1995 and respondents in A.S.No.32 of 2007.
3. The petitioner filed suit in O.S No.85 of 1995 before District Munsif Court, Hosur for declaration and injunction in respect of 59 cents mentioned in the suit schedule. The respondents filed written statement and contested the suit. After contest, the suit was dismissed by judgment and decree dated 01.07.2002. Against the said judgment, the petitioner filed appeal in A.S.No.32 of 2002 before the Sub Court, Hosur. In the appeal, the petitioner filed I.A.No.27 of 2007 to amend the plaint to include Para 6A to the effect that the petitioner's father purchased 12 cents and his ancestors were in possession and enjoyment of 47 cents. The respondents filed counter and opposed the said application on the ground that the plaint cannot be amended in the first appeal. If amendment is ordered, it will change the character of the suit. A new cause of action and a new case is introduced by amendment. The learned Judge, by order dated 08.04.2008 dismissed the application on the ground that the petitioner has right to file separate suit in respect of 47 cents or he can file relevant document and argue the matter with regard to 47 cents.
4. Against the said order of dismissal dated 08.04.2008 made in I.A.27 of 2007 in A.S.No.32 of 2002, the present Civil Revision Petition has been filed.
5. The learned counsel for the petitioner contended that the petitioner has sought for declaration in respect of 59 cents in the suit. The petitioner has stated that his father purchased 12 cents but failed to instruct his counsel about the possession of his ancestors with regard to 47 cents and subsequently he is in possession of 47 cents.
6. Per contra, the learned counsel for the respondents 6 and 7 reiterated the averments mentioned in the counter and submitted that the learned Judge has given valid reason for dismissing the application and there is no reason to set aside the said order. The petitioner has not given any reason for filing such amendment in the appellate stage and submitted that the petitioner has not given any convincing reason why he has not filed application earlier. In support of his contention, the learned counsel relied on the judgment of this Court reported in 2013 (3) L.W. 711 [Anthonysamy v. Christoraj and another] wherein it has been held as follows -
14. Courts have held that there is no impediment or total bar against an appellate court permitting amendment of pleadings, provided, if appellate Court observes the well known principles subject to which amendment of pleadings are usually granted. The party should offer a reasonable explanation for the delay in making the application seeking amendment and particularly, when such amendment is sought for, at the appellate stage, the party seeking amendment should adduce, strong and valid reasons, as to why the amendment sought for, was not made in the trial Court.
7. Heard the learned counsel for the petitioner as well as respondents 6 & 7 and perused the materials available on record.
8. An amendment can be ordered at any stage of the suit as well as in the Appellate stage, if such amendment does not introduce a new cause of action and a new case, malafide or cause hardships to the other side, if it is found that such amendment is necessary to decide the issue in the suit or such amendment is only to clarify the avements already made in the pleadings. In the interest of justice and equity also, an amendment can be ordered even in the Appellate stage.
9. In the present case, from the copy of the plaint filed in the additional typed set of papers, it is seen that the petitioner has sought for relief of declaration in respect of 59 cents. According to the petitioner, he has not stated as to how he got title in respect of 47 cents and by way of clarification he seeks amendment of plaint by incorporating Para 6A. A reading of Para 6A shows that it is only a clarification with regard to 47 cents as petitioner claims the same through his ancestors. The learned Judge, having held that the petitioner can file fresh suit claiming declaration in respect of 47 cents, ought to have allowed the application. The learned Judge, on erroneous consideration that the petitioner is claiming title over 47 cents for the first time in First Appeal, committed error by dismissing the application. In the said circumstances, the order passed by the learned Judge dated 08.04.2008 in I.A.27 of 2007 in A.S.No.32 of 2002 is liable to be set aside and it is hereby set aside.
10. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. The learned Subordinate Judge, Hosur is directed to permit the petitioner to carryout the amendment in the plaint and dispose of the appeal, as expeditiously as possible, not later than four months from the date of receipt of a copy of this order, after giving opportunity to the respondents to file additional written statement, if they so desire or advised.