The main legal point established in the judgment is that an amendment to correct a mis-description of the property in the plaint may be allowed if it does not alter the nature, character, or cause of action in the suit.

Civil Revision Petition filed under Article 227 of Constitution of India against the fair and decretal order of the Principal Subordinate Judge, Erode dated 14.11.2008 in I.A.No.1182 of 2008 in O.S.No.221 of 2007.

The petitioner is defendant in O.S.No.221 of 2007 on the file of the Sub-Court, Erode. The respondent/plaintiff filed the above suit for declaration that he is the absolute owner of the suit properties and also for recovery of possession from the defendant. He filed an application under Order 6 Rule 17 and Section 151 of C.P.C. for amending the plaint.

2. In the affidavit he has stated that he has clearly mentioned in the plaint pleadings that along with one Raju he purchased property jointly and divided the same into two. Thereafter, he constructed building in the land allotted to his share, which is the suit property herein. Now he came to know that in the description of the property, the entire land purchased jointly has been mentioned, which is incorrect. It is a clerical mistake and as stated in the plaint pleadings western side property possessed by him while eastern side property belongs to Raju and the amendment may be allowed.

3. In the counter filed by the defendant, it is stated that the object of the petition is not mere correction of a clerical error, but substitution of the suit property, altogether a different property; originally, according to the petitioner the suit was filed for possession of the northern half of a site and the house thereon. But by the amendment petition he seeks to substitute the southern-half of the site in the place of northern-half site and he cannot change the suit property by way of an amendment and that if so, the petitioner may withdraw the suit and file another suit as regard the property that is now sought to be brought in.

4. Learned Principal Sub-Judge, Erode, allowed the application by observing that by means of the sale deed dated 19.01.1970 only half of the property belongs to the plaintiff, that no prejudice will be caused to the defendant and that it is not acceptable that suit property is shifted.

5. Mr.P. Valliappan, learned counsel for the petitioner would submit that inasmuch as the amendment sought to be made in the plaint could alter the character and nature of the suit, that itself would change the suit property and amendment could not be allowed.

6. Conversely, Mr.T.C. Vasudevan, learned counsel for the respondent would contend that by means of introducing the amendment the nature and character of the suit will not get altered and that the defendant's right also will not be affected.

7. It is not mentioned before the Court about the stage of the suit. However, learned counsel for the petitioner placed reliance of the decision of the Supreme Court in 2009 SAR (Civil) 149 [Vidyabai & Others v. Padmalatha & Others] in which if the pre-conditions contained in Order 6 Rule 17 of C.P.C. were not fulfilled, the amendment shall not be allowed and filing of the proof affidavit in lieu of chief examination of the plaintiff is itself enough to infer that the suit is in part heard stage and it is the commencement of the proceedings.

8. It is also observedtherein that the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties, that only if such condition is fulfilled the amendment is to be allowed, that however, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court and that it puts an embargo on exercise of its jurisdiction in a case of this nature is limited and thus, unless the jurisdictional fact as envisaged therein is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

9. In another decision of Supreme Court in 2008 (5) CTC 253 [Rajkumar Guraward (Dead) through Lrs. v. S.K.Sarwagi & Co. Pvt. Ltd. & another] Their Lordships held that Courts have jurisdiction to alter or amend pleadings at any stage of proc