Party should have raised the issue of amendment before commencement of trial.

(Civil Revision Petition filed under Article 227 of the Constitution of India as against the order and decretal order of the learned Additional District Munsif, Tiruchendur in I.A.No.126 of 2004 in O.S.No.110 of 2002, dated 29.3.2004.)

The defendant, who was unsuccessful before the trial Court in resisting the application filed by the respondent/plaintiff to amend the plaint, is the revision petitioner.

2. On 4.8.2002, the plaintiff/respondent has filed the suit in O.S.No.110 of 2002, on the file of the District Munsif, Tiruchendur for declaration that the debt borrowed on mortgage, dated 7.2.1996, is discharged in view of the deposit of the amount of Rs.10,000/= i.e. for redemption, which was opposed, contending that the documents relied on by the plaintiff, are inadmissible in evidence. When the case was posted for judgment, after the closure of evidence, the plaintiff has filed I.A.No.33 of 2004, to amend the plaint, in order to include the prayer for recovery of possession, which was allowed on 6.2.2004. Thereafter, the learned Additional District Munsif, hearing both sides, adjourned the case to 22.3.2004 for judgment and just two days before the judgment is to be pronounced, another application, to amend the plaint, was filed in I.A.No.126 of 2004, which was opposed, contending that the proposed amendment is impermissible under law, if allowed, that will not only change the basic structure of the case, but also would change the character and nature of the claim also. Despite objections, the learned Additional District Munsif, in her detailed order, seeking aid from the rulings of this Court, as quoted by either counsel, and considering the dominant purpose of Order 6 Rule 17 CPC, came to the conclusion that in order to solve the problems between the parties, in the same suit, the proposed amendment should be permitted. But, at the same time, because of the inordinate delay and the stage of the petition filed, she allowed the application on payment of costs of Rs.1,000/=, which is under challenge in this revision.

3. Heard both.

4. The main thrusts of the learned counsel for the revision petitioner are that the trial Court has not considered the effect of the amendment introduced in Order 6 Rule 17 CPC, viz. proviso, which bars this kind of amendments and that the trial Court also failed to consider the scope of the amendment, which certainly, if allowed, would change the character and basic structure of the suit, thereby depriving the right accrued to the defendant on the basis of the original plaint, which is impermissible.

5. On the other hand, the learned counsel for the respondent/plaintiff would contend that the revision itself is not maintainable, that the proposed amendment is not aimed to change the structure or the base of the original plaint and in fact, the proposed amendment is permissible under Order 6 Rule 17 CPC, which was properly considered by the trial Court and that the proviso introduced in Order 6 Rule 17 CPC is not applicable in all the cases, particularly in this case, since in the proviso itself, power is given to the Court to amend the plaint, even after the trial has commenced. Thus, supporting the conclusion of the learned Additional District Munsif, a strenuous submission was made by the learned counsel for the respondent/plaintiff for the dismissal of this civil revision petition.

6. In order to decide the controversy raised, as stated above, we have to remember the stage, when the amendment petition was filed, when the suit was filed and whether the proposed amendment comes within the exception given in the proviso to Order 6 Rule 17 CPC. Admittedly, the plaint was presented before the trial Court on 4.8.2002 i.e. after the amendment came into force on and from 1.7.2002. In this view, the amended C.P.C. is well applicable, and therefore, we cannot decide the proposed amendment, only on the basis of the old Order 6 Rule 17 C.P.C. and in addition, proviso to the said provision should al