The main legal point established in the judgment is that after commencement of trial, amendment can be ordered only if the Court comes to the conclusion that in spite of due diligence, party could not have raised the matter in Court before the commencement of trial.

1. This civil revision petition has been filed against the fair and decretal order, dated 01.02.2014, made in I.A.No.422 of 2013 in O.S.No.419 of 2010 on the file of Additional District Munsif Court, Sankarankovil.

2. The petitioner is the plaintiff, whereas the respondents are the defendants in O.S.No.419 of 2010 on the file of Additional District Munsif Court, Sankarankovil. The petitioner filed O.S.No.419 of 2010 for the decree of declaration and for injunction in respect of two suit scheduled properties restraining the respondents, their men from interfering with their possession and enjoyment of the suit scheduled properties. The respondent filed written statement in the month of December 2010 denying the averments made in the plaint. After framing issues, the trial was commenced. The evidence on behalf of the petitioner was closed and posted for evidence on the side of respondents. At that stage, the petitioner filed I.A.No.422 of 2013, for amendment of the plaint to include the relief of mandatory injunction and for recovery of possession.

3. According to the petitioner, after the commencement of trial, the respondents trespassed into the suit property and put up stone pillars and fenced the suit property. After fencing the suit properties, the respondents filed an application in I.A.No.245 of 2013, for appointment of an Advocate Commissioner on false allegations. The petitioner filed counter affidavit in the said Application, setting out the correct facts. The Advocate Commissioner was appointed and he inspected the suit property. At the time of inspection, the petitioner pointed out that stone pillars and fencing were put up recently i.e., within one month before the date of inspection by Advocate Commissioner. The Advocate Commissioner recorded the same. The respondents have put up the stone pillars and fencing after the commencement of the trial. Therefore, the petitioner filed I.A.No.422 of 2013 for amendment to include the prayer for mandatory injunction and for recovery of possession. The petitioner also filed application in I.A.No.423 of 2013 for reopening the case. The respondents filed counter affidavit stating that in the written statement filed on 03.12.2010 itself, the respondents denied the averments of the petitioner that he is in possession. On the other hand, they asserted that they are in possession of the suit property and already they have put up stone pillars and fenced the properties. The Advocate Commissioner did not state that the stone pillars and fencing were put up recently. The petitioner was not in possession for more than 12 years before filing of the suit. The petitioner has not taken any steps to amend the plaint as on 03.12.2010 itself. The respondent have stated that they are in possession and put up fencing. Application filed after the commencement of trial is not maintainable.

4. The learned Trial Judge after considering all the materials on record and decision of this Court reported in [(2011) 1 MLJ 491 (Angamuthu Vs. Saroja and others)] dismissed the application. Against the said order of dismissal on 01.2.2014, the petitioner has filed the present Civil Revision Petition.

5. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

6. The learned counsel for the petitioner argued that the respondents trespassed into suit property only after commencement of the trial and put up stone pillar and fenced the property only in the month of October 2013. Therefore, the learned Judge ought to have allowed the application for amendment. The amendment, he sought for is based on subsequent event and report of the Advocate Commissioner reveals that construction put up by respondents recently. The learned Judge erred in holding after the amendment of CPC in the year 2002, no amendment of pleadings after commencement of the trial can be permitted. The learned Judge ought to have seen that the amendment to include the prayer for mandatory injunction and recovery