The court established that filing a second application for the same relief after a previous dismissal amounted to an abuse of the process of the court.

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.

2. 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 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.

3. 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.

4. Aggrieved by the aforesaid order, the present revision petition has been filed by the defendants.

5. 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.

6. 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.

7. 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 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 allow