Punjab-Haryana High Court
Shamsher Singh And Others vs Joginder Singh And Another on 19 October, 2011
Civil Revision No. 1435 of 2011 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 1435 of 2011 (O&M)
Date of Decision: October 19th , 2011
Shamsher Singh and others .... Petitioners
Versus
Joginder Singh and another
.... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present Mr. Rohiteshwar Singh, Advocate,
for the petitioners.
Mr. Dinesh Nagar, Advocate,
for respondent No.1.
Mr. Daljeet Singh Kahla, Advocate,
for respondent No.2.
VIJENDER SINGH MALIK, J.
This is a revision petition brought by the defendants under the provisions of Article 227 of the Constitution of India for setting aside the order dated 15.2.2011 passed by Civil Judge (Junior Division), Mukerian, vide which the application for amendment of the plaint has been allowed.
Joginder Singh, plaintiff had filed a suit for possession by way of removal of the super structure of all kind over land measuring 16 marlas out of the total land measuring 2 kanals 18 marlas, comprised in khewat No. 50 khatoni No. 106 and khasra Civil Revision No. 1435 of 2011 2 ..
no. 15R/17/1/(2-18) situated in village Fatehpur Kullian, Tehsil Mukerian, District Hoshiarpur, as per jamabandi for the year 1997-
98. In order to ascertain the fact of encroachment, a Local Commission from the Revenue Department was appointed in the year 2005. He demarcated the land at the spot and found the defendants to have been in possession of land measuring 2 kanals 4 marlas instead of 16 marlas. The plaintiff, consequently, filed an application for amendment of his plaint for substituting land measuring 16 marlas by land measuring 2 kanals 4 marlas in the plaint.
Taking reply to the application, learned Civil Judge (Junior Division), Mukerian heard learned counsel for the parties and for the reason that the application has been filed after submission of the report by Local Commission, in which he found the defendants to be in possession of 2 kanals 4 marlas, he has allowed the application by way of the impugned order. He has further observed in the impugned order that the proposed amendment would not change the nature of the suit nor it would cause any prejudice to the defendants in any manner.
Aggrieved by the aforesaid order, the present revision petition has been filed by the defendants.
I have heard Shri Rohiteshwar Singh, learned counsel for the petitioners, Shri Dinesh Nagar, learned counsel for respondent No.1 and Shri Daljeet Singh Kahla, learned counsel for respondent No.2. and have gone through the record.
Civil Revision No. 1435 of 2011 3
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Learned counsel for the petitioners has submitted that the application for amendment of the plaint had been barred by the principle of res judicata. According to him, principle of res judicata applies to even different stages in the same proceedings. He has sought support in this regard from a decision of Hon`ble Supreme Court of India in Rajendran Vs. Mohammed Kunhi 2002(2) RCR (Rent) 488, wherein it has been held that the principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings.
Learned counsel for the petitioners has further submitted that the suit was barred by limitation on the date of filing of the application. According to him, earlier the suit was filed for possession of 16 marlas of land and now by way of amendment, the plaintiff has sought to enlarge the scope of his suit as covering land measuring 2 kanals 4 marlas and the suit as per the amended plaint is barred by limitation on the date of application. He has also submitted that the second application for amendment of the plaint would not lie because the first application seeking the same relief has already been dismissed. He has further submitted that amendment to the plaint cannot be allowed after the commencement of the trial unless, the applicant satisfies the requirement of the proviso to Order 6 Rule 17 of Code of Civil Procedure. According to him, the trial had commenced much Civil Revision No. 1435 of 2011 4 ..
earlier to the date of filing of the first application in the year 2008. He has further submitted that the factum of possession of land measuring 2 kanals 4 marlas of the defendant was in the knowledge of the plaintiff from the year 2005 when the Local Commission gave a report to that effect. He has submitted that in all these circumstances, the amendment could not be allowed and as the order allowing the amendment is bad, the same is liable to be set aside.
Learned counsel for the respondent-Joginder Singh has submitted that the Local Commission was appointed in the year 2005 and he gave his report on 29.7.2005. According to him, the first application was decided on 17.8.2009. The main plank of his submission to resist this revision petition is the acceptance of costs by the other side subject to payment of which the amendment was allowed. He has drawn my attention to Annexure R1, copy of the statement of Shri K.S. Gambhir, Advocate, whereby he had accepted the costs of Rs. 500/- under protest and the copy of the order dated 22.2.2011 vide which this fact is noticed by learned Civil Judge. According to him, once the costs, subject to payment of which amendment has been allowed, has been accepted, the party accepting the costs is estopped from challenging the order. In this regard, he has sought support from the ratio of a decision of this court in Raj Kumar Vs. Narain Dass 1992(2) PLR 263.
It may be made clear at the outset that acceptance of costs under protest is different from acceptance of costs without Civil Revision No. 1435 of 2011 5 ..
any such protest. Acceptance of costs without any protest would estop the party accepting the costs from challenging the order, but acceptance of costs under protest would not estop a party from challenging the order. Therefore, the ratio of Raj Kumar's case (supra) would not apply to the facts of this case.
It is a case where for the same amendment in the plaint, an application was filed earlier also, which was dismissed by learned Civil Judge (Junior Division), Dasuya, vide order dated 17.8.2009. The said order was challenged before this court by Joginder Singh - plaintiff by way of Civil Revision No. 5730 of 2009, which was dismissed vide order dated 19.1.2010 (Annexure P2). In the face of dismissal of the application for the same relief by learned Civil Judge (Junior Division), Dasuya vide order dated 17.8.2009 and dismissal of the revision petition brought against the said order by this court vide judgment dated 19.1.2010, filing of the second application amounted to abuse of process of the court. In the face of the aforesaid facts, this application should have been dismissed without even taking reply to the same. Learned Civil Judge (Junior Division), Mukerian has not dismissed this application at the time of filing of the same, but has even allowed it for the reason that this application has been filed after submission of the report of the Local Commission and that it would not change the nature of the suit nor would cause any prejudice to the defendants in any manner.
In Rajendran's case (supra), the Rent Control Appellate Civil Revision No. 1435 of 2011 6 ..
Authority while remanding the eviction petition vide order dated 25.11.1988 had decided the question as to whether the eviction application is barred by section 15 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and so the said question could not be re-agitated. This is not the position in the case before me. Therefore, it cannot be said that the present application is barred by the principle of res judicata.
However, as the application for amendment of the plaint on the same facts had already been dismissed by Civil Judge (Junior Division), Dasuya and revision petition against the said order had also been dismissed by this court, the second application amounted to abuse of the process of the court and the same could not be allowed for any of the reasons given by learned Civil Judge (Junior Division), Mukerian. Therefore, the impugned order is unsustainable.
Consequently, the revision petition is allowed and the impugned order is set aside.
(VIJENDER SINGH MALIK) JUDGE October 19th , 2011 som