This Civil Revision Petition is filed challenging the order dated 10.9.2013 made in I.A.No.946 of 2013 in O.S.No.19 of 2010 on the file of the District Munsif Court, Ponneri, in dismissing the application filed by the petitioners under Order 6 Rule 17 CPC seeking permission to amend the plaint.

2. The revision petitioners herein are the plaintiffs and the respondents herein are the defendants in the said suit. The said suit was filed for declaration to declare that the plaintiffs are the true and absolute owners of 50% undivided share of the property described in the plaint schedule and for permanent injunction restraining the defendants 1 to 4 from interfering with the suit property.

3. After the filing of the abovesaid suit in the year 2010, the petitioners/plaintiffs filed I.A.No.946 of 2013 seeking for amendment of the plaint to add the relief of possession as well, along with the existing relief as stated supra. In the said application, they have contended that by over-sight, the relief of possession was omitted to be asked for and unless such relief is also included in the main prayer, they cannot enjoy the fruits of the decree in the event of their success. It is also contended by them that the relief of possession sought for by way of amendment, is not barred by limitation.

4. Such application was opposed by the third defendant by filing a counter affidavit, contending that the petitioners do not have any right in the property and when they seek the declaratory right only in respect of 50% of the undivided suit property, in the amendment, they seek for recovery of possession of the entire suit property. Thus, it is contended that the amendment is changing the very nature of the suit itself without any cause of action. It is also pointed out that the petitioners/plaintiffs have not valued the suit property on the market value by paying necessary Court fee.

5. The Court below dismissed the said application by holding that the relief of possession sought for by way of amendment, is a destructive plea, since the petitioners/plaintiffs retained the relief of permanent injunction as well in the prayer and they have not incorporated the Section of law for the Court Fee and not valued the suit. It is also observed by the trial Court that the petitioners/plaintiffs did not plead and prove that they could not raise the plea at the earliest inspite of their due diligence.

6. Learned counsel appearing for the petitioners/plaintiffs submitted that the amendment is not changing the nature or character of the suit and the relief of possession is not barred by limitation. He further submitted that in order to avoid multiplicity of proceedings between the parties, the amendment should be allowed. In support of his submissions, he relied on the decisions of the Supreme Court reported in 2003 (10) SCC 242 (Chandan Hazarika Vs. Banti Bhuyan) and 2012 (5) CTC 803 (SC) (Abdul Rehman Vs. Mohd. Ruldu) and a decision of this Court reported in 2009 (3) CTC 522 (UCO Bank Vs. Nest Tours & Travels P. Ltd). Considering the fact that the petitioners have not sought to delete the relief of injunction while seeking to introduce the prayer for possession, the learned counsel submitted that alternatively, the petitioners may be permitted to file a fresh application before the trial Court.

7. Per contra, learned counsel appearing for the respondents 3 and 4 submitted that the plea of injunction and possession cannot go together and therefore, the amendment sought for as such, is not maintainable. He further submitted that admittedly, the petitioners have not sought for amending the plea with regard to the payment of Court Fee as well as the cause of action in the relevant paragraphs of the original plaint. He further submitted that subsequent to the amendment introduced in the Civil Procedure Code in the year 2002, by way of Amendment Act 22 of 2002, the petitioners have not stated and established that inspite of due diligence, they could not mak