Mistake in naming co-executants must be permitted to be rectified.

These revisions have been filed by defendants against the order allowing the applications to amend the plaint.

2. Petitioners are the legal representatives of one Purushothaman. The respondent/plaintiff filed a suit for recovery of the amount due on three promissory notes dated 15.7.2000, 27.7.2000 and 3. 8.2000 respectively. The petitioners are defendants 1 to 3. In the plaint that was originally filed, the respondent had pleaded that the first promissory note was executed by the late Purushothaman and the first petitioner, the second promissory note was executed by late Purushothaman and the second petitioner and the third promissory note was executed by late Purushothaman and the third petitioner. In the list of documents also these promissory notes were similarly described. A proof affidavit was also filed by the respondent. Subsequently, he tiled amendment applications seeking to amend the plaint averments by deleting the names of the second and third petitioner and substituting it with the name of the first petitioner. Therefore, as per the amendment, it is only the first petitioner, who had executed the three promissory notes along with late Purushothaman and not the second petitioner or the third petitioner.

3. Though this was resisted by the petitioners, applications were allowed by the Court below. Against that, these revisions have been filed.

4. Learned counsel for the petitioners would submit that no amendment could be filed to take away any right that has accrued in favour of the other party. Further, he submitted that as per the amended Civil Procedure Code, every plaint shall be supported by an affidavit and an affidavit is the sworn statement and it is not open to the respondent to alter what has been sworn by him on oath. Learned counsel would further submit that as per the original plaint, the three promissory notes were executed by the second and third petitioners themselves along with their father. But, now the case is that these promissory notes were executed only by the first petitioner-the mother of the second and third petitioners, along with the Late Purushothaman and this, totally changes the case and as such the amendments cannot be ordered. Learned counsel relied on the following judgments.

1. Munilal v. Oriental Fire & General Insurance Co. Ltd. and Another AIR 1996 SC 642 : 1996 (1) SCC 90; 2. Radhika Devi v. Bajrangi Singh and Others, AIR 1996 SC 2358: 1996 (7) SCC 486; 3. Jagan Nath (deceased) through LRs. v. Chander Bhan and Others, AIR 1988 SC 1362 : 1988 (3) SCC 574.

4. Gojabai v. Ganga Bai Ramchandra Pawar and Another, AIR 1980 SC 1436: 1980 (2) SCC 329; 5. B.K. Narayana Pillai v. Parmeswaran Pillai and Another, AIR 2000 SC 614: 2000 (1) SCC 712 and 6. Pankaja and Another v. Yellappa (D) LRs. and Others, 2004 (4) CTC 231.

5. Reliance was also placed on Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others, 2004 (2) LW 800, to draw the distinction between 'material facts' and 'material particulars' and how omission of a single material fact leads to an incomplete cause of action.

6. Learned counsel for the respondent would submit that it is only because there may be genuine lapses in the drafting of the pleadings, that Civil Procedure Code itself provides for amendment, in this case, the amendment petitions have been filed as soon as the error was noticed. Learned counsel would also submit that no accrued right had been taken away from the petitioners, because, according to the pleadings, the petitioners had made part-payments towards the amounts due on the promissory note, the last such payment was made on 29.12.2002. Therefore, even if the respondent were to withdraw the suit with leave to file a fresh suit, as such, the suit will be in time. Learned counsel would submit that if on the face of promissory notes, it is apparent, that it is only the first petitioner who had executed the promissory notes along with her husband, late Purushothaman, the amendment will