Judgment:
S. Palanivelu, J.
1. The petitioner is defendant in O.S. No. 221 of 2007 on the file of the Sub-Court, Erode. The respondent/plaintiff filed the above suit for declaration that he is the absolute owner of the suit properties and also for recovery of possession from the defendant. He filed an application under Order 6 Rule 17 and Section 151 of C.P.C. for amending the plaint.
2. In the affidavit he has stated that he has clearly mentioned in the plaint pleadings that along with one Raju he purchased property jointly and divided the same into two. Thereafter, he constructed building in the land allotted to his share, which is the suit property herein. Now he came to know that in the description of the property, the entire land purchased jointly has been mentioned, which is incorrect. It is a clerical mistake and as stated in the plaint pleadings western side property possessed by him while eastern side property belongs to Raju and the amendment may be allowed.
3. In the counter filed by the defendant, it is stated that the object of the petition is not mere correction of a clerical error, but substitution of the suit property, altogether a different property; originally, according to the petitioner the suit was filed for possession of the northern half of a site and the house thereon. But by the amendment petition he seeks to substitute the southern-half of the site in the place of northern-half site and he cannot change the suit property by way of an amendment and that if so, the petitioner may withdraw the suit and file another suit as regard the property that is now sought to be brought in.
4. Learned Principal Sub-Judge, Erode, allowed the application by observing that by means of the sale deed dated 19.01.1970 only half of the property belongs to the plaintiff, that no prejudice will be caused to the defendant and that it is not acceptable that suit property is shifted.
5. Mr. P. Valliappan, learned Counsel for the petitioner would submit that inasmuch as the amendment sought to be made in the plaint could alter the character and nature of the suit, that itself would change the suit property and amendment could not be allowed.
6. Conversely, Mr. T.C. Vasudevan, learned Counsel for the respondent would contend that by means of introducing the amendment the nature and character of the suit will not get altered and that the defendant's right also will not be affected.
7. It is not mentioned before the Court about the stage of the suit. However, learned Counsel for the petitioner placed reliance of the decision of the Supreme Court in 2009 SAR (Civil) 149 [Vidyabai and Ors. v. Padmalatha and Ors.] in which if the pre-conditions contained in Order 6 Rule 17 of C.P.C. were not fulfilled, the amendment shall not be allowed and filing of the proof affidavit in lieu of chief examination of the plaintiff is itself enough to infer that the suit is in part heard stage and it is the commencement of the proceedings.
8. It is also observed therein that the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties, that only if such condition is fulfilled the amendment is to be allowed, that however, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court and that it puts an embargo on exercise of its jurisdiction in a case of this nature is limited and thus, unless the jurisdictional fact as envisaged therein is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.
9. In another decision of Supreme Court in : AIR2008SC2303 [Rajkumar Guraward (Dead) through Lrs. v. S.K. Sarwagi & Co. Pvt. Ltd. and Anr.] Their Lordships held that Courts have jurisdiction to alter or amend pleadings at any stage of proceedings on such terms as may be just and all pre-trial amendments to be allowed liberally and if the amendment is sought for after commencement of trial, question or prejudice to opposite party may arise and hence it is incumbent on the part of Court to satisfy conditions prescribed in proviso to Rule 17.
10. Mr. T.C. Vasudevan, learned Counsel for the respondent would rely upon a decision of the Supreme Court reported in : AIR2004SC4102 [Pankaja and Anr. v. Yellapp (D) Lrs. and Ors.] wherein it is held as follows:
12. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not to allow an amendment being discretionary the same will have be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on a factual background of that case.
11. The Apex Court in 2002 (4) CTC 189 [Sampath Kumar v. Ayyakannu and Anr.] has affirmed that mere delay cannot be a ground for refusing a prayer for amendment.
12. In : AIR2008SC1960 [Puran Ram v. Bhaguram and Anr.] the Supreme Court has held that it is only a correction or rectification of a part of description of suit property which cannot involve either the question of limitation or the change of nature of suit, the suit for specific performance of the contract for sale and a separate independent suit is not needed to be filed when the proviso to Section 26 of Specific Relief Act, 1963 (47 of 1963) itself clearly permits either party to correct or rectify the description of the property not only in the plaint and also in the agreement of sale. It is also held that correction or rectification of a part of description of property would not change the nature of the suit and the suit shall remain as a suit for specific performance and that the Court may in its discretion allow an application for amendment of plaint even where the relief sought to be added by amendment is allegedly barred by limitation and that no question of limitation shall arise when mis-description of the name of the original plaintiff or mis-description of the suit property arose in a particular case.
13. This Court in its decision reported in 2009 (1) CTC 81 [Muniswami v. M. Manickam and 3 Ors.] has held that amendment sought to substitute survey number of Well in plaint in place of 'Suit Well' does not alter the nature and character of the suit and that in order to resolve dispute between parties after giving them sufficient opportunities amendment can be permitted even though it is filed after commencement of trial of suit.
14. Even if it is considered that the amendment petition has been filed after the commencement of the trial, while this Court considers the nature of the amendment, it is discernible, it would not alter the nature of and character of the suit. It has been specifically pleaded in the affidavit that now only the respondent came to know that the entire property purchased jointly along with Raju has been mentioned as suit property. It this juncture, it has to be recorded by this Court that the mis-description occurred due to inadvertence of the party and when the error strikes the knowledge of the respondent, he has filed application for amendment and hence it is observed that inspite of due diligence he could not take up the amendment application anterior to the commencement of the trial.
15. As for the merit of the amendment, it is only a mis-description of the property, when this Court scrutinises the pleadings and description of the property, it is understood that the suit property is not shifted as contended by the petitioner. In the plaint the east-west measurement has been furnished as 40 ft and total extent as 2920 Sq.ft. They are sought to be amended with the substitution of numerals 20 ft. and 1460 Sq.ft. respectively. Another part of amendment is as to the boundary. Already it is stated in the schedule as, on the West T.S. No. 905/11 vacant site and it is now prayed to be amended as, 'on the west of Raju's house'.
16. When the abovesaid particulars are considered in the light of the particulars in the schedule in the sale deed dated 19.1.1970, it is an amendment to correct the mis-description of the property and nothing else. It is further observed that by incorporating the amendment there would be no prejudice to the rights of the petitioner and there is no scope for alteration of nature, character and cause of action in the suit.
17. In the light of what are stated above, after following the decisions of the Honourable Supreme Court, it is held that the order passed by the Court below does not suffer from any legal infirmity which deserves to be confirmed and accordingly it is confirmed. The Civil Revision Petition suffers dismissal.
In the result, the Civil Revision Petition is dismissed, confirming the order of the learned Principal Subordinate Judge, Erode in I.A. No. 1182 of 2008 in O.S. No. 221 of 2007 dated 14.11.2008. No costs. Consequently, connected M.P. Is also dismissed.