R.NANDHINI DEVI Vs. R.SANTHANALAKSHMI

JUDGEMENT

(1.) This Original Side Appeal is directed against the order of the learned Single Judge dtd. 8/4/2024 in allowing the A.No.1307 of 2022 in CS No.137 of 2011 to amend the plaint.

(2.) The appellants are the contesting defendants in the suit in C.S No.137 of 2011. The first plaintiff in the suit is the mother of 1st appellant's husband and the second plaintiff is the first plaintiff's elder son. The suit is for recovery of possession of suit "A" schedule for transfer of suit "B" schedule in favour of 1st plaintiff' and other reliefs. During pendency of suit, the 1st plaintiff died. Alleging that the 1st plaintiff had executed a Will in favour of 2nd plaintiff, he filed an application for amendment of plaint incorporating necessary plea on the basis of Will, to amend cause Will and other amendments which are predominantly additions correction necessitated on account of death of first plaintiff and alleged Will executed by first plaintiff in favour of second plaintiff. The learned Single Judge while allowing the petition for amendment is of the view that the amendment is necessitated in view of subsequent events and that the amendment should be allowed in the interest of justice.

(3.) Learned counsel for the appellant submitted that the amendment is sought for at the instance of a 3rd party, who had been impleaded. He contented that the learned Judge allowed the application for amendment without considering the objections raised by the appellants. Stating that the cause of action itself arose only after the institution of the suit filed by the appellants and the suit itself is a counter blast to the suit filed by the appellant in CS No.386 of 2010, it is submitted that the learned Judge erred in allowing the application. The learned counsel submitted that the amendment introducing new prayer after the suit is listed for trial cannot be permitted. Yet another submission made by the learned counsel for the Appellants is that the plaintiff has now pleaded a Will, which is not yet probated and no relief can be claimed without the Will being probated. He further contended that the amendment is a clear abuse of process of law as the same will change the character of suit.