An amendment to the plaint should not constitute a new cause of action or raise a different case altogether, but should amount merely to a different or additional approach to the same facts.

JUDGMENT :

M. Papanna, J. - The order of the learned 1st Addl. Civil Judge (Sr. Division), Cuttack, passed in T.S. No. 91/91 allowing plaintiffs' prayer for amendment of the plaint is under challenge in this Civil Revision.

2. Defendants 1 to 4 in T.S. No. 91/91 before the learned 1st Addl. Civil Judge (Sr. Division), Cuttack are the petitioners whereas the plaintiffs in the suit are the opposite parties herein.

3. Brief facts of the case needed for determining the question in controversy in the revision are like this :

Plaintiffs brought the above suit for the decree for partition of the suit properties. One late Birendra Kumar Mukherjee was the common ancestor of the plaintiffs and also defendants. He had five sons. Nirmal Kumar Mukherjee was his eldest son. He was the custodian of his father's property in Cuttack town. His other four sons being well placed were serving elsewhere. In 1973 there was a partition of his immovable properties among his widow Taru Bala Mukherjee and five sons by a Bibada Bhanjan Patra. His agricultural lands and some movable properties continued to be their joint properties. His eldest son Nirmal Kumar Mukherjee was in possession of the said properties. In course of time he squandered away some movable properties. Rest of the joint family movable properties are liable to be partitioned among the co-sharers. In 1980 Taru Bala Mukherjee wife of the common ancestor died. Her share of property allotted to her in 1973 is to be succeeded by her five sons. Nirmal Kumar Mukherjee unscrupulously recorded her mother's property exclusively in his name in the running settlement behind the back of other four sons, who filed settlement cases before the Commissioner of Land Records and Settlement, Orissa, who in turn in R.P. Case No. 36/90 finally decided that the said property is their joint family property. However, the defendants grabbed the said property after the death of Nirmal Kumar Mukherjee in 1985. So the plaintiffs and the defendants came into litigating terms centring-round the said property. The plaintiffs made demand for partition of the property many a time, the last one being made on 25.12.1991 as per the plaint averments. When the defendants 1 to 4 turned deaf ear to the said demand and threatened the plaintiffs with dire consequences, they brought the above suit for partition of the property in question.

4. On the pleadings of the parties, the learned trial Judge, who framed the issues, proceeded with the suit by examining two witnesses on behalf of the plaintiffs and closed their side on 3.5.2001 and allowed the defendants to adduce their evidence. But he recalled the order dated 3.5.2001 when the defendants failed to adduce evidence on the date fixed and allowed the plaintiffs to adduce further evidence on their behalf subject to payment of cost of Rs. 100/-.

5. On 23.7.2001, the plaintiffs filed a petition under Order VI Rule 17 C.P.C. seeking amendment of the date of cause of action as 25.12.1990 instead of 25.12.1991, on the ground that the mistake in the year of cause of action (that is 1991) occurred on account of typographical mistake to which the defendants objected on the ground that the proposed amendment being a new cause of action changing the nature and character of the suit, the defendants should be highly prejudiced if the same is allowed. The learned trial Judge upon hearing both the parties came to hold that the date of cause of action as has been mentioned in the plaint as 25,12.1991 instead of 25.12.1990 as per the proposed amendment was nothing but purely a typographical mistake. Accordingly, he allowed the plaintiffs to amend the plaint in respect of the date of cause of action subject to payment of cost of Rs. 300/- with a direction to file there consolidated plaint.

6. The impugned order allowing the amendment of the plaint has been assailed by the learned counsel for the petitioners in the revision. Relying on 88 1990 CLT 628, Kanhu Charan Mohanty v. Prafulia Chandra Mishra,