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2003 DIGILAW 606 (MAD)

Ellappan alias Sozhan v. Appavu

2003-04-04

K.GOVINDARAJAN

body2003
ORDER: The petitioner filed the above revisions questioning the order of the lower Court rejecting their application to amend the plaint mentioning the correct date of Ex.B-1, Will and against the order of rejecting the petition to reopen the suit and proceed further on the basis of the amendment. 2. The second defendant claims right in the property on the basis of the Will executed by the first defendant. In the written statement, it is stated that the basis of the Will dated 2.8.1995 though Ex.B-1 is dated 2.2.1996. The petitioner and his Advocate realised the mistake only after the evidence was over. So, the petitioner has come forward with the petition to make suitable amendment. For that purpose, the petitioner has also filed the application to reopen the suit. The lower Court has rejected the petitions mainly on the basis that the evidence was over and so, at this stage the amendment cannot be allowed. So the petitioner has filed the above revisions. 3. Under O.6, Rule 17, C.P.C., as amended under Act 22 of 2002 no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Even before me, the learned counsel appearing for the respondent relied on the said provision to sustain the order passed by the lower Court. 4. In this case, though in the written statement the date of Will is stated as 2.8.1995. Ex.B-1 was marked and the said document contains only the date as 2.2.1996. The petitioner has not marked any Will with the date 2.8.1995. The petitioner claims right only under Ex.B-1, which is dated 2.2.1996. Moreover, the said mistake was realised by the petitioner only after trial was over and so he come forward with the present revision. 5. If the petition to amend the said date is not allowed, even if the petitioner is able to succeed on merits, there is possible of decreeing the suit on the basis of wrong date given by the petitioner. When the petitioner has come forward with the plea that they realised the mistake and if the said mistake is not rectified, the right will be affected. When the petitioner has come forward with the plea that they realised the mistake and if the said mistake is not rectified, the right will be affected. In the interests of justice, the Court has to allow the petitions to make suitable amendments by which the respondents are not at all affected. Hence, the petitions are ordered and the respondents are given liberty to file any additional reply statement if it is necessary within the time to be given by the lower Court. 6. With the above observations, the civil revision petitions are allowed. No costs. Consequently, C.M.P. No.2022 of 2003 is closed.