Amendment of plaint sought before starting of trial is entertainable.

The Civil Revision Petition is directed against the order of the learned District Munsif, Madurai Taluk dated 10.6.2002 made in I.A. No. 71 of 2002 in O.S. No.225 of 1999 in and by which the learned District Munsif, Madurai Taluk, dismissed the said petition filed under Order 6 Rule 17 read with Section 151 C.P.C. seeking permission to amend the plaint as described in the said petition.

2. Heard the learned counsel for the petitioner as well as the respondent.

3. In the affidavit filed in support of the said petition, it is stated that pending suit, the defendant had forcibly dispossessed the petitioner/plaintiff from the suit property. Aggrieved by the act of the respondent/defendant, the petitioner has filed I.A. No.136 of 2000 to put the petitioner in possession of the property by Court of law. The said petition was allowed on 4.12.2000. It is also his claim that as per order in I.A. No.136 of 2000, the petitioner was put into possession of the suit property. Subsequent to that, the respondent again dispossessed the plaintiff from the suit property. On these averments, the petitioner has prayed to amend the plaint for the relief of recovery of possession.

4. The respondent/defendant filed a counter wherein it is stated that as per the order of this Court in C.R.P.No.1370 of 2000, which was filed against the order in I.A. No.136/2000, the petitioner is out of possession and he is not eligible to obtain possession of the suit property. It is further stated that the petitioner is not a tenant under the respondent and one Duraisingam is in possession of the suit property and also he filed a suit in O.S. No.209/1998 and obtained an ex parte decree which is still in force.

5. The learned District Munsif, after holding that though the petitioner has stated that the respondent has illegally dispossessed him from the suit property, in the absence of relevant details viz., date of dispossession etc., dismissed the said petition.

6. The learned counsel for the petitioner would contend that since the application of the petitioner is pre- trial application,i.e. well prior to the commencement of the trial and in the light of the decision of the Supreme Court reported in SAMPATH KUMAR VS AYYAKANNU ( 2002(4) CTC 189) the learned District Munsif ought to have allowed the said application for amendment.

7. On the other hand, the learned counsel for the respondent would submit that in the light of the earlier order passed by this Court in C.R.P.No.1370 of 2000 and also of the fact that one Duraisingam is in possession of the suit property, the petitioner is not entitled to amendment as prayed for by him and the learned District Munsif has rightly dismissed the petition.

8. I have carefully considered the rival submissions.

9. Before considering the claim of both parties, it is useful to refer to Order 6 Rule 17 C.P.C. which reads as under:

Amendment of Pleadings: The Court may at any stage of the proceedings, allow either party to

alter or amend his pleadings in such manner and on such terms, as may be just and such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, party could not have raised a matter before the commencement of trial"

10. It is clear that the Court is empowered to consider such application at any stage of the proceedings to amend or alter his pleadings if it is found that the amendment is required for the purpose of determining the real questions in controversy between the parties. The only embargo as per the proviso to that Rule is that no application for amendment be allowed after the trial has commenced. Even here, if the Court comes to the conclusion that in spite of due diligence party could not have raised a matter before the commencement of the trial, the Court is empowered to c