The nature of the amendment sought and the conduct of the petitioners are crucial factors in determining whether an alternate relief should be allowed, as it should not introduce a new cause and a totally different claim, and should not amount to withdrawal of the stand or the plea regarding title which was given up.

1. This revision has been preferred being aggrieved by the fair and decretal order dated 18th November, 1998 made in I.A.No: 46 of 1998 in A.S. No. 161 of 1994 on the file of the Second Additional District Judge, Tirunelveli.

2. Heard Mr. K. Govi Ganesan, learned counsel appearing for the petitioners and Mrs. B. Sivakama Sundari, learned counsel appearing for the respondent.

3. The petitioners herein instituted O.S.No: 195 of 1985 on the file of the Subordinate Judge of Tirunelveli against the respondent seeking for declaration of title in respect of the first and second schedule properties and consequential injunction or in the alternative for recovery of possession. The respondent resisted the suit. Pending the suit, the petitioners moved the trial Court for amendment of the reliefs prayed for. As per the amended plaint the petitioners prayed for declaration that the suit first and second schedule properties absolutely belong to the third schedule Kattalais and the plaintiffs are the varisudars of the said Kattalais and for consequential injunction or alternatively for recovery of possession. It is needless to add that at the instance of the petitioners the said amendment has been allowed after contest.

4. Ultimately after trial the suit came to be dismissed in its entirety. Being aggrieved, the petitioners preferred the regular Appeal A.S. No. 161 of 1994 on the file of the District Court, Tirunelveli. Four years after the presentation of the Appeal, the petitioners moved an application for amendment of the reliefs prayed for and amendment being to declare that the plaintiffs alone are entitled to the suit first and second schedule properties. The said application in I.A.No: 46 of 1998 was resisted by the respondent. The learned Second Additional District Judge by order dated 18th of November, 1998 dismissed the said application while sustaining the objections raised by the respondent. Being aggrieved the present revision has been preferred.

5. Mr. K. Govi Ganesan, learned counsel for the petitioners contended that the order rejecting the application for amendment of the relief would amount to refusal to exercise the jurisdiction vested in the Court below and that the order suffers with illegality. Per contra, Mrs. B. Sivagami Sundari, learned counsel for the respondent contended that the Court below had rightly dismissed the application and no interference is called for with the order passed by the Court below as the very petitioners having successfully sought for amendment introducing the relief of declaration that the suit property belong to the third schedule Kattalai, cannot now turn around or go back and plead that in the alternative they are entitled to the relief of declaration of title in their favour.

6. It has to be mentioned at this stage that the above revision was taken up for hearing on 23.2.1999. It was allowed by this Court. However, the respondent herein thereafter moved an application to set aside the said order dated 23.2.1999 assigning valid reasons for non appearance, besides pointing, out that though the respondent had entered appearance through counsel, the counsels name had not been shown in the cause list and therefore the order has to be set aside. The learned Judge, who had allowed t he revision petition by order dated 24.6.1999, allowed the said application and set aside the order dated 23.2.1999 passed in the revision petition. As a result thereof the revision restored to file. Hence the present revision is taken up for hearing afresh. The points that arise for consideration are: —

(i) whether the amendment setting forth an alternative relief is to be ordered as prayed for?

(ii) whether the order of the Court below is sustainable?

7. At the outset it has to be pointed out, the petitioners have not sought for amendment of any portion of the body of the plaint, but they only seek for amendment of the relief portion to include an alternate relief as if they are owners. Whether such an amen