In a suit for partition, application for amendment at the instance of either party to the suit is maintainable under Order VI, Rule 17 of the Civil Procedure Code.

D.MURUGESAN, J.

1. The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?

2. The said question has been referred to for a decision by the Division Bench by The Honble Mr.Justice M.Duraiswamy vide order dated 16.3.2011 and the reference necessitated in view of the conflicting views given by two learned Judges of this Court in the decisions in Ramasamy and another v. P.Marappan and others, 2005 (3) MLJ 663 and in A.A.Ganga and another v. A.R.Usha and others, 2010 (4) CTC 331.

3. In a suit for partition filed by the plaintiffs in O.S.No.31 of 2007 on the file of the Subordinate Court, Madurantagam, the defendants, namely the revision petitioners, filed I.A.No.264 of 2009 under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the plaint on the ground that some of the joint family properties were left out by the plaintiffs for partition. After hearing both sides, the learned trial Judge dismissed the application holding that the defendants cannot seek for amendment of the plaint. The said order is put in issue in this civil revision petition.

4. In the judgment in Ramasamy v. P.Marappan, 2005 (3) MLJ 663, the learned Judge R.Banumathi, J. held that under Order VI, Rule 17 of the Civil Procedure Code, a party can seek to amend ‘his pleadings’ in plaint or written statement, but a party cannot seek to amend the pleadings of his opponent. So far as the amendment of plaint is concerned, the learned Judge has held that as the plaintiff is the dominant litus and he cannot be compelled to include other items of properties in the plaint schedule in a partition suit. The learned Judge was of the view that if the petition mentioned properties which are sought to be included in the plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition. Holding so, the learned Judge upheld the order of the trial Court in dismissing the application to amend the plaint.

5. Subsequently, when the very same question came up for consideration before R.S.Ramanathan, J., the learned Judge, after referring to the judgment in Ramasamy case, held that such an application for amendment in a partition suit at the instance of the defendant is maintainable, since, in a suit for partition, the plaintiff is defendant and the defendant is plaintiff, and therefore the defendant is entitled to include the property left out by the plaintiff so as to have a complete adjudication and to avoid further litigation.

6. Before we consider the issue raised in this civil revision petition, the relevant provision of Civil Procedure Code, viz., Order VI, Rule 17 requires a reference and the same reads thus:

“17. 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 all such amendments shall be made as may be necessary for the purpose of determining the real questions 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, the party could not have raised the matter before the commencement of trial.”

7. The scope of Order VI, Rule 17 of the Civil Procedure Code came up for consideration before the Apex Court and the Apex Court ultimately held as follows in the following judgments.

8. In the judgment in Revajeetu Builders and Developers v. Narayanasamy and sons and others, (2009) 10 SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the application for amendment:

(i) whether the amendment sought is imperative for proper and effe