The mandatory nature of the proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908, restricts the court's jurisdiction to allow amendments after the trial has commenced, emphasizing the need for genuine reasons and due diligence for seeking amendments at the appellate stage.

JUDGMENT

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 04.10.2012 passed in I.A.No.268 of 2009 in A.S.No.107 of 2007 on the file of the Subordinate Judge, Kuzhithurai.)

1. This Civil Revision Petition has been filed assailing the order passed by the learned Subordinate Judge''s Court at Kuzhithurai in I.A.No.268 of 2009 in A.S.No.107 of 2007 dated 04.10.2012. The original suit in O.S.No. 292 of 1989 on the file of the District Munsif Court at Kuzhithurai was one for partition, demarcation of plaint ''B'' schedule property and declaration of the title and possession over plaint ''C'' schedule property and recovery of possession of plaint ''C'' schedule property. The suit was dismissed on merits on 22.06.2006. As against which, A.S.No.107 of 2007 was preferred by the plaintiffs 2 to 5 before the Subordinate Judge''s Court at Kuzhithurai. For the sake of convenience, the parties herein are referred to as arrayed in I.A.No. 268 of 2009 in A.S.No.107 of 2007.

2. During the pendency of the appeal suit, the appellant / plaintiffs preferred a petition in I.A.No.268 of 2009 seeking to amend the plaint on 8 counts including the relief column and the survey number of the plaint ''B'' and ''C'' schedule properties. The respondent / respondent / defendants have filed a counter to that interlocutory application and on merits the said interlocutory application was dismissed on 04.10.2012 in the first appellate stage. Assailing the same, the present Civil Revision Petition was filed by the revision petitioner / petitioner / appellant / plaintiff.

3. Heard the learned Counsels for the revision petitioners and the respondents anxiously and carefully perused the materials available on record. The learned Counsel for the petitioners took me through various grounds of the Civil Revision Petition and the contents of the documents.

4. The learned Counsel for the revision petitioners submitted that the amendment which is sought for in the first appellate stage ought not to have dismissed by the first appellate Court.

5. Per contra, the learned Counsel for the respondent / respondent / defendant vehemently argued that an amendment which is sought to amend the plaint at the first appellate stage is liable to be dismissed in merits and there is no coherence either in the plaint or in the amendment sought for by the petitioner in the said interlocutory application and he pressed for dismissal of the Civil Revision Petition relying on the following decision of the Hon''ble Supreme Court of India:

The Hon''ble Supreme Court of India in a judgment reported in [MANU/SC/1093/2022] in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another dated 01.09.2022 in paragraph No.70 has held as follows:

“70. ........(iii) The prayer for amendment is to be allowed

(i) If the amendment is required for effective and proper adjudication of the controversy between the parties,

`(ii) and To avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) The amendment changes the nature of the suit,

(iii) The prayer for amendment is malafide, or

(iv) By the amendment, the other side loses a valid defence.