ORDER: This revision is against the order allowing the amendment of plaint.

2. The properties originally belonged to one S.K.Marimuthu Pillai who died in 1973. He had three sons. There is a third son. One son is the respondent, the other son was one Rathinam and the petitioners are his wife and three sons. The respondent filed O.S.No.93 of 1991 for bare injunction. It has now been renumbered as O.S.No.448 of 1991. The respondent claimed to be in possession of the suit property pursuant to a registered release deed dated 20.4.1982 executed by his brother Rathinam as guardian of his minor sons and the 2nd petitioner herein, the major son. Of course, these details were not spelt out in the plaint originally. In May, 1990, when the petitioners came to know of this release deed, they issued a notice demanding partition on 13.5.1990. They also filed a suit for partition in O.S.No.691 of 1991 on 17.7.1991. The respondent was served but did not file his written statement and an ex parte decree was passed in the partition suit on 21.12.1992. The application to set aside the ex parte decree was dismissed and this has been confirmed in revision. Therefore, the ex parte preliminary decree for partition has become final. It appears that the respondent has subsequently filed another suit for declaration that the decree obtained in the partition suit is vititated by fraud. This suit is pending. Thereafter the petitioner filed I.A.No.478 of 2002 for amendment of plaint deleting the original paragraphs 3 and 4 and substituting them with new paragraphs which according to the respondent clarify the position and also added the relief of declaration. It is against the order passed allowing the amendment, this revision has been filed.

3. Learned counsel for the petitioner would submit that by virtue of the amendment, the original plaint is virtually deleted and a fresh plaint is introduced. The rights that have accrued to the petitioner are sought to be defeated by this amendment. The amendment is barred by limitation and therefore ought not to have been allowed.

4. Learned counsel for the petitioner also submitted that the respondent having deliberately allowed the suit for partition to be decreed ex parte and having failed in his attempt to have the ex parte decree set aside, has now filed this application with an oblique motive. It was also submitted that the Court below suffered from the misconception that all pre-trial amendments should be allowed and failed to see that while pre-trial amendments are viewed more liberally it does not mean that the discretion to consider whether the amendment should be allowed is not there. According to the learned counsel for the petitioner by allowing the amendment, the petitioners are prejudiced by having to fight a new case but also run the risk of being deprived of the rights which had accrued to them. Learned counsel submitted that if this Court comes to the conclusion that the amendment should be allowed and the merits of the amendment should not be considered at this stage, the direction given in Sampath Kumar v. Ayyakannu, (2002)4 C.T.C. 189 must be adopted, so that the amendment would relate not to the date of the suit but to the date of the amendment alone.

5. Learned counsel for the respondent on the other hand would submit that there is no change in the frame of suit and that the amended paragraphs only seek to elaborate what was originally placed and for this purpose reliance was placed on Fritiz T.M.Clement v. Sudhakaran Nadar, A.I.R. 2002 S.C. 1148, wherein it was held, that when the original plaint was cryptic about the agreement between the parties which was the basis of the suit, the amendment seeking incorporation of more details must be allowed though it was sought for belatedly and that the amendment instead of prejudicing the defendant would only place the defendant in a better position to defend his case.

6. As regards the question of res judicata, learned counsel submitted that the Court bel

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