Amendments to pleadings are not permissible after trial commencement if they seek to re-agitate issues barred by res judicata.

JUDGMENT :

G. GIRISH, J.

1. Can amendment of plaint be permitted, after the completion of evidence, to incorporate a plea which would otherwise be barred by res judicata, if raised in a fresh suit? Our endeavour is to resolve this precise legal issue.

2. The refusal of the Waqf Tribunal, Kozhikode to permit amendment of the plaint by incorporating a prayer for recovery of possession in W.O.S No.8/2023, at a stage when the case stood for final hearing after the completion of evidence, is under challenge in this appeal filed by the plaintiff in the aforesaid suit.

3. Originally, the suit was instituted before the Waqf Tribunal, Ernakulam as W.O.S No.9/2015 seeking the reliefs of declaration and permanent prohibitory injunction. The aforesaid suit was decreed ex parte by the Waqf Tribunal, Ernakulam. Later on, the ex parte decree was set aside, and the suit was renumbered as W.O.S No.8/2023 and transferred to the Waqf Tribunal, Kozhikode. In the meanwhile, the petitioner herein filed W.O.S No.45/2022 before the Waqf Tribunal, Kozhikode seeking the relief of recovery of possession of the very same Waqf property which is the subject matter in W.O.S No.9/2015 (which was renumbered as W.O.S No.8/2023). W.O.S No.45/2022 was dismissed after full trial by the Waqf Tribunal on 24.02.2025. It is thereafter, that the petitioner filed I.A No.2/2025 in W.O.S No.8/2023 seeking amendment of the plaint by incorporating a prayer of recovery of possession of the property for which the relief of declaration was sought in the aforesaid suit. According to the petitioner, the amendment was necessitated due to the dismissal of W.O.S No.45/2022 which according to him, was on the ground that no independent cause of action subsisted once the earlier ex parte decree in W.O.S No.9/2015 had been set aside and the Original Suit was restored to files for fresh trial. The Waqf Tribunal declined to grant the relief of amendment stating the reason that the petitioner failed to establish that in spite of due diligence, he could not raise the plea for amendment before the commencement of trial. It was further observed that the incorporation of a new relief for recovery of possession would definitely alter the nature of the suit. The Waqf Tribunal also referred to an earlier amendment made by the plaintiff in the year 2017 and held that the petitioner has no explanation for his failure to incorporate the prayer for recovery of possession at that time. Accordingly, the Tribunal dismissed the amendment application by the impugned order dated 20.09.2025.

4. Heard the learned counsel for the petitioner, learned counsel for respondents 1 and 2 and the learned Standing Counsel for the 3^rd respondent.

5. The subject matter of the suit, in which the amendment is sought, are the properties said to be belonging to the Thykavu Mosque of Mattancherry, Kochi. The petitioner instituted the aforesaid suit in his capacity as the mutawalli of the aforesaid Mosque. The allegation in the suit was that the property scheduled thereunder are being wrongly held by the first defendant/first respondent consequent to the lease made by the second defendant/second respondent. Despite a contention in the above regard about the illegal possession of the suit properties by respondents 1 and 2, the petitioner did not incorporate a prayer for recovery of possession in the plaint. Obviously, W.O.S No.45/2022 was instituted by the petitioner with the prayer for recovery of possession of the very same properties in order to mitigate the anomaly in W.O.S No.9/2015 (now renumbered as W.O.S. No.8/2023) due to the absence of a prayer for recovery of possession of the suit properties. Anne