The principle of res judicata prevents re-litigation of issues already decided, and the appellate court retains the power to consider new evidence, but no new facts justified the amendments sought.

JUDGMENT :

Neeraj Tiwari, J.

1. Heard Sri Rahul Sahai, learned counsel for the petitioner, Sri K. M. Garg, learned counsel for the respondent nos. 3/1, 3/3 & 3/5, Sri S. C. Pandey, learned counsel for the respondent no. 3/2 and Sri Saurabh Pandey, leanred counsel for the respondent nos. 3/4/1 to 3/4/7.

2. Present petition has been filed seeking for the following reliefs:-

“I. Issue a suitable order or direction for setting aside the impugned judgment/order dated 17.05.2024 passed by Additional District Judge Court No. 10, Mathura in Civil Appeal No. 40 of 2010 ( Raj Kumar Chaturvedi and others Vs. U.P. Awas Evam Vikas Parishad and others ).

II. Issue a suitable order or direction to allow the amendment application 114 ka or in the alternative to set-aside the judgment/order dated 20.07.2018, 02.02.2019 and 27.01.2019 passed by the Additional District Judge, Court No. 8, Mathura & Additional District Judge/Special Judge, Court No. 4, Mathura respectively.”

3. Learned counsel for the petitioner submitted that earlier land was acquired by respondent No. 1 and suit no. 16 of 1988 for declaration and permanent injunction has been filed. Brief facts of the case are that land was acquired by respondent no.1 but later on the said proceeding has been dropped vide notification dated 07.07.2005. Later on, the said notification was recalled by the respondent no.1 by another notification dated 25.04.2008. Aggrieved that petitioner had preferred a writ petition before this Court being C.M.W.P. No.529 of 2009 which was allowed vide order dated 31.08.2010. During pendency of the aforesaid petition, the suit of the plaintiff/petitioner was itself decided vide judgement/decree dated 30.03.2010. Being aggrieved, the petitioner has preferred Civil Appeal No. 40 of 2010 before District Judge, Mathura. During pendency of the appeal as the writ petition filed earlier was allowed, petitioner has moved two amendment applications numbered as 65 Ka and 67 Kha which are based upon the judgement of the High Court dated 31.08.2010. The said amendment applications were rejected vide order dated 20.07.2018 with the finding that judgement of High Court shall be considered while deciding the appeal.

4. He next submitted that in between the respondent no.1 has filed S.L.P. © Nos. 34271 of 2010 and 34090 of 2010 which was disposed of permitting the appellant to seek a recall/review application against the order dated 31.08.2010. The recall application was filed for recalling of the order dated 31.08.2010 which was rejected by this Court vide order dated 07.04.2017. Against that respondent no.1 has filed Civil Appeal No.3025-3026 of 2022 before Hon’ble Apex Court which was dismissed vide order dated 20.04.2022.

5. He next submitted that at this stage petitioner has preferred amendment application to incorporate the above developments in the plaint, which has been rejected vide impugned order dated 17.05.2024 on the ground that earlier also the similar nature of amendment application had already been dismissed by this Court. He next submitted that in light of new development by the order of this Court as well as Hon’ble Apex court, fact are necessary to be incorporated. Therefore, the amendment application must have been allowed and for that delay cannot be a ground. So far as, the order dated 20.07.2018 is concerned, the delay cannot be a ground in case some development has taken place before the High Court. He next submitted that though legal situation at the stage of rejection of fist amendment application vide order dated 20.07.2018 is the same but factual aspect has been changed and the same must have been brought on record. He next submitted that as the suit was decided in light of the notification dated 25.04.2008 giving rights to the private respondents, re-appreciation of amendment is required.

Therefore, impugned orders are liable to be set aside.

6. Per contra, Sri K. M. Garg, learned counsel for the respondent nos. 3/1, 3/3 submitted that order dated 20.07.2018