( 1 ) THIS is an application under Order 6 Rule 17 seeking amendment in respect of para 13 of the plaint as to rectification of the factual error in respect of the order dated 13/5/1997 passed by the learned Trial court before whom the earlier suit was filed by the plaintiff. Main objection raised by counsel for defendant no. 1 is with regard to the maintainability of the suit itself as the same is barred by provision of Order 9 Rule 9 Civil Procedure Code

( 2 ) A suit for partition was filed by the plaintiff in the court of learned District Judge valuing the pecuniary jurisdiction below Rs. 5. 00 lacs but when it came to the notice that pecuniary jurisdiction exceeded Rs. 5. 00 lacs and therefore the court of Additional District Judge has no jurisdiction to try the suit, an application under order 23 Rule 1 Civil Procedure Code was moved by the plaintiff seeking withdrawal of the suit with the permission to file a fresh suit in the court of competent Jurisdiction on the same cause of action.

( 3 ) THE plaintiff throughout laboured under the belief that the application has been allowed and as such he filed the instant suit in this court wherein the following plea was taken in para 13 of the plaint:

THAT earlier the plaintiff filed suit for partition with regard to the same property which was pending in the court of Shri Prithvi Raj, Additional district Judge, Delhi but the same was withdrawn on 13/5/96 with permission to file a fresh suit on the same cause of action as the pecuniary jurisdiction of the court to try and entertain the suit as valuation of the suit exceeds more than rs. 5,00,000. 00.

( 4 ) WHEN the defendant in the written statement disclosed that the suit was in actuality dismissed in default and not dismissed as withdrawn with the permission to file a fresh suit for the same cause of action, the instant application was moved by the plaintiff. The order dated 13/5/97 passed by the learned District Judge which was not in the knowledge of the plaintiff is as under:

3"13/5/97 present: None for the plaintiff. Counsel for the respondent No. 2. 91 in this case application of compromise and permission to withdraw this petition was filed but today none for the plaintiff has appeared despite several calls made. Case is dismissed in default. File be consigned. "

( 5 ) SO far as the non maintainability of this suit because of its being barred by the provision of Order 9 rule 9 Civil Procedure Code is concerned it is altogether an independent issue and has no relevance so far as the amendment in para 13 of the plaint sought through the application under order 6 Rule 17 Civil Procedure Code is concerned. The principles governing the provision of Order 6 Rule 17 Civil Procedure Code are on different parameters and mainly confine to the nature of facts and the nature of amendment sought by a party. It is settled that an amendment that does not introduce a new case or new cause of action, it is liable to be allowed. Stage of the suit is immaterial. The amendment can be allowed even at the appeal stage. The nature of the instant amendment is mere rectification of a factual error which was not to the knowledgof the plaintiff at the time of filing of the suit in question and as such does not introduce either a new case or a new cause of action.

( 6 ) IT is also settled that even if the amendment ousts the Jurisdiction of the court the same is liable to be allowed by the court whose Jurisdiction is ousted. Disallowing such an amendment is not in accordance with the principles enshrined in Order 6 Rule 17.

( 7 ) ALMOST similar situation arose in the following cases : (i ) Kanthal India Ltd. vs. Anant Prasad Bhatia air 1987 Cal. 24 (ii) Suri Films Vs. S. N. Govinda Prabhu and brother AIR 1989 Ker. 28. In Kanthal India s case the amendment of the plaint strengthened the case of the plaintiff by introducing certain pleadings to show that certain matters already pleaded took place within the jurisdiction of the court. It was hel