The main legal point established in the judgment is that a petition for amendment of the plaint, which changes the nature and character of the suit and causes prejudice to the opposing party, cannot be allowed under Order VI R.17 of the C.P.C.

K.A. Mohamed Shafi, J.

1. This C.R.P. is filed by the defendants in O.S.No.500/1998 on the file of the 1st Addl. Munsiff's Court, Ernakulam challenging the order in I. A.No.5099/2000 dated 18.7.2000. That application was filed by the plaintiff, respondent herein to amend the plaint under Order VI R.17 of the C.P.C. The lower court allowed the application as per the impugned order. Hence the above revision petition is preferred by the defendants - revision petitioners before this Court.

2. The above suit is filed by the respondent against the petitioners for realisation of Rs.56,032/- with interest alleging to be due from the defendants on a clean over draft facility to the tune of Rs.35,000/- granted on 24.3.1995. The petitioners filed written statement denying their liability for the claim.

3. At the stage of trial after examination of PW 1, the respondent filed the above I.A. seeking to delete para 4 of the plaint and to incorporate a fresh para 4 as set forth in the application. Though the petitioners objected to the amendment contending that the amendment will create a fresh cause of action in favour of the plaintiff and against the petitioners and it will take away the vested right accrued upon them, the lower court by finding that the cause of action will not change and the nature and character of the suit will not be changed by the proposed amendment and for determining the real questions in controversy between the parties in the suit the amendment is necessary, allowed the application.

4. In para 4 of the original plaint the respondent has alleged as follows:

"4. The plaintiff Bank granted to the defendants a clean over draft facility to the tune of Rs.35,000/- (Rupees Thirty five thousand only) on 24.3.1995 with interest from that date at 5.25% above State Bank of India Advance Rate Minimum of 20.25% per annum with interest tax, applicable from time to time with quarterly rests. A period of 12 months was stipulated by the plaintiff Bank, for repayment. The plaintiff submits the loan amount was appropriated by the defendants on said date; ie; 24.3.1995 after executing an on Demand Promissory Note and D.P.Delivery Note cum Letter of Continuity in Form A-11 by both the defendants, in favour of the plaintiff Bank."

5. In the written statement the petitioners have contended that there is a document or evidence with the plaintiff Bank to show that the defendants have accepted Rs.35,000/- other than the demand promissory note and D.P. delivery note, that the demand promissory note and D.P. delivery note were executed without accepting any consideration, that the demand promissory note and D.P. delivery note were executed by both the defendants as the preliminary step as per the demand of the office of the plaintiff Bank for availing the over draft facility.

6. In spite of the above contentions raised by the petitioners in the written statement, the respondent proceeded with the suit and at the stage of trial after examining the Manager of the plaintiff-Bank as PW 1, the respondent has filed the above petition to amend the plaint. As per the amendment the respondent wanted to delete the sentence "plaintiff submits that loan amount was appropriated by the defendants on the said date ie 24.3.95 after executing an on Demand Promissory Note and Demand Promissory Delivery Note cum letter of continuity in Form A-11 by both the defendants in favour of plaintiff Bank" and to add the following in para 4:

"The plaintiff submits the clean over draft facility was granted on execution of an on Demand Promissory Note. Demand Promissory Delivery Note cum letter of continuity in Form A-11 on the said day by both the defendants in favour of the plaintiff bank. This facility was granted to regularise an earlier transaction the defendants had with the plaintiff bank. The 1st defendant was maintaining a Savings Bank Account with the plaintiff bank asNo.16908. The said account was being operated by the 1st defendant regularly. The defendants gave a