M THAMARAISELVI Vs. LATHA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) The learned counsel for the petitioner placed reliance upon a decision of this Court in Hathija Rani and Others v. S. Nasira Babu and Another,1999 2 MadLJ 450 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 CD. Varadarajan v. S. Mohan and Another, 2009 4 MadLJ 731 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.