Full Judgment
Prabha Sridevan, J.
1. This revision has been filed against the order of allowing amendment application.
2. Learned Counsel for the petitioner relied on Palaniappan and Ors. v. Govindaraj and Ors., , and submitted that when the respondent's case is that they had l/3rd share in the property and the petitioner had 2/3rd share, it is not open to them to change the whole case by amendment, according to which, the respondents now want to plead to case that they have 2/3 rd share and the petitioner had l/3rd share in the property. Learned Counsel for the petitioner would submit that it is not just in the plaint that this mistake is said to be crept in, but even in the proof of affidavit and in all other pleadings, the same case was projected by the respondents, which is now altered after the trial has commenced.
3. Learned Counsel for the respondents would submit that by amendment, the nature of the case is not altered, but it is only allocation of shares. According to the counsel, the respondents got l/3rd share in the suit property in their own right under the Family Partition Deed dated 22.1.1965 and another l/3rd share from the respondent's brother, Narayana Nadar, who sold the same to them under the Sale Deed dated 12.2.1969. Learned Counsel would further submit that there was another brother, from who the petitioner has purchased the remaining l/3rd.
4. Learned Counsel would further submit that when the rights of the parties are determined by the document of title in their favour, but there was erroneous drafting in the pleading, the parties should not suffer and according to the learned Counsel, the Advocate who drafted the plaint had taken into account only the partition Deed and not the subsequent Sale Deed from Narayana Nadar.
5. In Palaniappan and Ors. v. Govindaraj and Ors., , this Court dismissed the revision, which was filed against the dismissal of an application to amend the plaint. It is held therein that after the amendment of C.P.C., there can be no amendment after the commencement of trial unless the Court comes to the conclusion that despite due diligence, the parties could not have raised the plea before the commencement of the trial.
6. When the matter came up on 24.11.2005, it was represented that the suit had been decreed on 14.7.2005 ex parte. Now, the learned Counsel for the petitioner submitted that the petitioner/5th defendant filed an application to set aside the ex parte decree and the same has already been allowed and therefore, the suit has been restored to file.
7. The Court below has considered the averments in the affidavit and in the counter. The Court below has also referred to the error that has crept in, not in one place but in several places. However, the Court below allowed the amendment with the following words:
8, The fact that the respondents are relying on the Sale Deed dated 12.2.1969, is borne out by the document that was marked as Ex.P-2 and there is also reference in paragraph 5 of the proof affidavit of the plaintiff regarding the sale from the brother Narayana Nadar, which reads as follows:
9. In these circumstances, one can come to the conclusion that it is only at a later stage, the respondents actually realized the mistake that had crept in and had come forward with this application. As observed by the trial Court, there is no real alteration of the case but it is only the question of allocation of the shares. The Court below was satisfied that the amendment has to be allowed and I am not inclined to interfere with the order of the Court below.
10. In the result, the Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.