1996 Supreme(Guj) 230

Gujarat High Court
Judgename :S.D.Shah
GOVINDBHAI GELABHAI PATEL - Appellant
Versus
MADHABHAI PRABHUDAS PATEL - Respondent
Civil Revision 1943 of 1995
Decided On : 05/03/1996

Headnote:(a) Civil Procedure Code, 1908 - Secs. 11, 115 & Order 6 Rule 17 - Trial Court rejected second application for amendment of plaint on ground that it had rejected first application on 9th July 1993 and therefore second application was barred by principle of resjudicate - Validity & legality of order - First application for amendment was for amendment in relief clause of the plaint as defendant had put up construction unauthorisedly after grant of order of maintenance of status quo - Objections that found favour with the trial Court while deciding first application for amendment were that amendment was sought merely in relief clause & not in the pleadings and that grounds of amendment constitutes seperate cause of action for second suit - Both these objections were absolutely unsustainable & Jejune grounds and trial Court refused to exercise jurisdiction vested in it by law & rejected the application for amendment - Admittedly thereafter court commissioner was appointed & he prepared the panchnama indicating extent of construction put up by defendant - Second application for amendment is thereafter putup seeking necessary amendment in the body of plaint including cause of action & relief clause - Held, Trial Court was bound in view of very nature of second amendment application but this court is not bound by principle of resjudicata in exercise of its revisional jurisdiction - Refusal of amend by the court shall result into substantial miscarriage of justice and unnecessary multiplicity of suits.

       The question is whether this court should not exercise its jurisdiction under Sec. 115 of Civil Procedure Code on the ground that earlier order of the trial Court would operate as res judicata. This may be so vis-a-vis the trial court as it is bound by its own earlier order though the order was absolutely unjust, contrary to law and not sustainable in law at all. In my opinion, when such a fact situation arises and the High Court in its revisional jurisdiction is satisfied that both, the earlier order as well as the subsequent order are not sustainable in law at all and that there is no ground to deny amendment of the plaint, as such amendment is necessary to decide all issues that may arise between the parties in the same suit, the court must exercise its jurisdiction. In the amended provision of Sec. 115 of C.P. Code by proviso to Sec. 115(i) it is enacted that the High Court shall not under this section vary or reverse any order made or any order deciding an issue, in the course of a suit, except where the order, if allowed to stand, would occasion a failure of justice or cause irreprable injury to the party against whom it was made.

       [Para 12]

       The trial court in its earlier order also found that defendant puts up construction after the filing of the suit and after granting of ad interim injunction and that would provide a fresh cause of action for a second suit. The relief of mandatory injunction can therefore be asked by the plaintiff by second suit and ultimately such relief shall have to be gone into by the Civil Court by consolidating both the suits. Instead of that procedure, if the plaintiff amends the plaint because in blatant disregard of the order of the court, the defendant has put up construction and plaintiff has pressed for mandatory direction to remove or demolish the construction which the defendant has so placed, it falls beyond ones comprehension as to how such an amendment can be said to be falling beyond the purview of Order 6 Rule 17 of Civil Procedure Code when the matter is brought to this Court under Sec. 115 of the Civil Procedure Code and when it is found by this court that to uphold the second order of the trial court would tantamount the perpetrating a failure of justice or would tantamount to putting premium over the unauthorised act of a party who has put up construction despite order of injunction, this court cannot refuse to exercise its revisional jurisdiction and cannot sustain an order of the trial court on the ground that since earlier order was passed on amendment application, the plaint cannot be amended. In my opinion, if such an order is allowed to stand on the ground that earlier order would operate as res judicata, it would result into substantial miscarriage of justice and this court shall have to interfere with such an order so as to see that multiplicity of suits is avoided and any issue which necessary arises in the suit, can be determined in the same suit without relegating the plaintiff to file a separate suit and thereafter to try two suits after consolidating the same.

       [Para 12]

       (b) Principle of res-judicata - Scope & applicability - Stated - Civil Procedure Code, 1908 - Sec. 11.

       Principle of res judicata is based on the need of giving a finality to judicial decisions. What Sec. 11 says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. It is also required to be noted that primarily the principle of res judicata is embodied in relation to suits but even where Sec. 11 does not apply, the principle of res judicata has been applied by Courts of law for the purpose of achieving finality in litigation. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding. As regards interlocutory orders passed at different stages of the same suit between the same parties, the Apex Court has held that when at an earlier stage of the litigation the Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, the matter is certainly final as regards that Court. However, it should not be treated as final in later stages of the proceedings in a higher Court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred. It is very clear that with a view to attaching finality to the order of the court rendered in the same proceeding between the same parties at a stage, principle of res judicata or principle of abuse of the process of the Court is applied so as not to permit the same party to reagitate the same question before that very court.

       [Para 11]

       It shall have to be kept in mind that there is nothing to preclude the High Court when the trial court has decided the matter to exercise its revisional jurisdiction. The order is certainly final as regards the trial court. It may be treated as final in later stages of the proceeding in the same court. However, it cannot be treated as final in higher court which had not considered the application at all merely on the ground that against the earlier order passed no appeal lay or no appeal was preferred. A higher court when moved by way of an appeal or in its revisional jurisdiction, if it finds that both the initial as well as subsequent order passed by the trial court were in total disregard of the salutary principle for grant of amendment under Order 6 Rule 17 of the Civil Procedure Code and they were palpably and manifestly illegal and unjust and further that the order of the trial court in substance amounted to refusal to exercise jurisdiction which was vested in it by law, the doctrine of res judicata or abuse of the process of the court cannot and should not muffle the higher court from exercising its power with a view to obviating the miscarriage of justice.

       [Para 11]