This Civil Revision Petition has been filed against the fair and decreetal Order dated 16.12.2013 in I.A.No.470 of 2013 in O.S.No.63 of 2000, on the file of the Sub Court, Madurantagam.
2. The petitioner is the twelfth defendant, respondents 1 and 2 are the plaintiffs and the respondents 3 to 20 are the defendants 2 to 20 in O.S.No.63 of 2000. The respondents 1 and 2 filed the suit for partition, claiming 1/4th share in the suit property. The petitioner and others filed written statement and are contesting the suit. The respondents filed I.A.No.470 of 2013, to include one more property in the schedule to the plaint and sought for partition in respect of the said property also.
3. According to the respondents 1 and 2, they came to know about the said property recently and immediately, they filed a petition for amendment to include the said property also. The petitioner alone filed a counter affidavit and other respondents have not filed any counter affidavit. The petitioner opposed the said application and submitted that the claim of the respondents 1 and 2 to include the property is barred by limitation and the said application is belated one. After amendment of C.P.C., no amendment can be allowed, after commencement of trial.
4. The learned Judge, considering the averments made in the affidavit, counter affidavit and the materials available on record, allowed the application, holding that the petitioner has not stated as to how he is prejudiced, the amendment does not change the character of the suit or cause of action and compensated the petitioner, directing the respondents 1 and 2 to pay a sum of Rs.1,000/- as cost.
5. Against the order dated 16.12.2013 made in I.A.No.470 of 2013 in O.S.No.63 of 2000, the present civil revision petition is filed by the petitioner/twelfth defendant.
6. Heard the learned counsel for the petitioner and perused the materials available on record.
7. The grievance of the petitioner in the C.R.P. is that the learned Judge failed to see that that by amendment, the respondents 1 and 2 are trying to include a barred claim and the learned Judge failed to see that the amendment sought is hit by plea of ouster and adverse possession.
8. The respondents 1 and 2 filed the suit for partition, claiming 1/4 share in the schedule mentioned properties to the plaintiffs. The present application is filed to include one more property, which was left out at the time of filing of the suit. According to the respondents 1 and 2, they came to know about the said property recently and filed application immediately. In the suit for partition, the property left out at the time of filing of the suit can be included, pending suit. The contention of the learned counsel for the petitioner that the trial has been commenced and no amendment can be allowed as per the amended provision under order VI Rule 17 of C.P.C. The said contention is contrary to the proviso to Order VI Rule 17 of C.P.C. The proviso to Order VI Rule 17 reads as follows:-
"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
9. As per this proviso, if the Court comes to the conclusion that in spite of due diligence the parties could not have raised before commencement of trial, the court can order amendment. In the present case, the respondents 1 and 2 have stated that they came to know the property sought to be included only recently.
10. The learned Judge considering the fact that no new plea or cause of action is introduced and amendment does not change the character of the suit, allowed the application. There is no illegality or irregularity in the order passed by the trial Court, dated 16.12.2013, warranting interference by this Court.
11. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.