The main legal point established in the judgment is that an application for amendment must be filed before the commencement of trial, and the court must be satisfied that in spite of due diligence, the party could not have filed the application for amendment earlier.

This civil revision petition has been filed against the fair and decretal order dated 23.08.2011, made in I.A.No.1193 of 2011 in O.S.No.576 of 2004, on the file of the Additional District Munsif Court, Alandur.

2. The petitioner is plaintiff, respondents are the defendants in O.S.No.576 of 2004 on the file of the Additional District Munsiff, Alandur (Petitioner Originally filed O.S.No.171 of 1996, before the Subordinate Judge, Poonamallee). The Petitioner filed the said suit for declaration and permanent injunction, restraining the respondents from interfering with the peaceful possession and enjoyment of the suit property. The first respondent did not file any written statement. The respondents 2 and 3 filed written statement on 07.09.1998 and are contesting the suit. Trial commenced. The petitioner filed proof affidavit and was examined in chief on 03.06.2008. Subsequently, she did not appear for cross examination on many occasions. The suit was dismissed for default on 15.04.2009.

3. The petitioner filed I.A.No.580 of 2009 for restoration of the suit to the file. But the petitioner did not pursue the same and the said I.A. was dismissed for default. Then an application filed by the petitioner to restore the suit was allowed and subsequently, O.S.No.576 of 2004 was restored to file. The petitioner filed the present Interlocutory Application in I.A.No.1193 of 2011 on the file of the District Munsif, Alandur, for amendment to include the prayer for recovery of possession.

4. According to the petitioner, earlier she had filed a suit in O.S.No.98 of 1993 on the file of the District Munsif Court, Poonamallee for declaration and permanent injunction against one Elumalai. The said suit was transferred to District Munsif Court, Tambaram and re-numbered as O.S.No.2588 of 1993 and interim injunction was granted in the said suit and an Advocate Commissioner was appointed as prayed for in I.A.No.173 of 1993. Taking advantage of the dismissal of the present suit for default, the respondents 2 and 3 trespassed into the suit property. In the circumstances, she prayed to amend the plaint to include relief of recovery of possession.

5. The respondents 2 and 3 filed counter affidavit and opposed the said application on the ground that in the written statement filed on 07.09.1998 itself they have stated that the petitioner is not in possession and the respondents are in possession of the suit property from the date of their purchase on 30.11.1993 and their vendor had already fenced the property and appointed a watchman. The petitioner did not take any steps to amend the plaint at that time itself. After filing of the proof affidavit by the petitioner and examination of petitioner in chief, the petitioner did not appear for cross examination on many occasion. The suit was dismissed for default and application filed by the petitioner for restoration was also dismissed and subsequently, the suit was restored to file. The petitioner is seeking amendment, subsequent to the commencement of trial and petitioner has not stated that in spite of due diligence, she could not have filed application for amendment before commencement of the trial.

6. The learned Judge, considering the averments in the affidavit, counter affidavit, materials on record, written statement and judgment relied on by the respondents, dismissed the application, holding that the petitioner has not given any reason for filing application belatedly and that relief sought for is barred by limitation.

7. Against the said order of dismissal dated 23.08.2011, made in I.A.No.1193 of 2001 in O.S.No.576 of 2004, the present civil revision petition is filed by the petitioner.

8. The learned counsel appearing for the petitioner submitted that the petitioner was in possession of the suit property and the respondents trespassed in to the suit property only after dismissal of the suit for default on 15.04.2009. Interim injunction was granted, pending suit and once suit is restored, interim injun