The main legal point established in the judgment is that the doctrine of res judicata does not apply when an application for amendment is based on subsequent developments during the pendency of the appeal.

JUDGMENT :

1. The present appeal is filed under section 104, Civil Procedure Code read with Order 43, Rule 1(u) of the Code of Civil Procedure (in short ‘CPC’), challenging the legality and validity of the order dated 21-5-2010 passed by 9th Upper District Judge, Jabalpur, in Miscellaneous Appeal No. 24-A/2009 whereby the appeals filed by the defendants have been partially allowed and the judgment and decree dated 31-7-2007 passed in Civil Suit No. 44-A/2004 by 3rd Civil Judge, Class I, Jabalpur has been set aside and after allowing the application under Order 6, Rule 17, Civil Procedure Code filed by the plaintiff, the case has been remanded back by imposing cost of Rs. 2500/- on the plaintiff. The plaintiff has been permitted to amend the plaint and the present appellant/defendants have been given liberty to incorporate necessary amendments in the written statement.

2. The brief facts, in short, are that the respondent/Plaintiff Sanjay Kumar Tibude filed a suit against the appellant and other defendants seeking a relief of declaration that he is the owner in possession of the suit plot on the basis of sale deed executed by the defendant Co-operative Society in his favour and also prayed consequential relief of injunction restraining the respondent No. 3/present appellant from interfering from the possession of the plaintiff of the suit plot/land. The appellant filed written statement and denied the claim and submitted that the plaintiff was not in possession of the suit plot and his title is also defective. It was stated that since the plaintiff could not carry out the construction as per the condition of the allotment within a stipulated period, therefore, the plot has been sold to him and he is a subsequent purchaser. He also claimed that he is in the possession of the plot. An application for amendment was filed by the plaintiff on the basis of subsequent development but the same was rejected by the trial Court however, the suit was decreed in favour of the plaintiff for declaration.

3. The defendant No. 3 and the other defendant Co-operative Society filed appeal against the judgment and decree. It is stated that a counter claim was also filed by the plaintiff but the same was rejected. In the appeal, the plaintiff filed an application for amendment under Order 6, Rule 17, Civil Procedure Code claiming a relief for restoration of his possession on the allegations of the subsequent events during pendency of appeal that the present appellant/defendant No. 3 has raised a construction.

4. Counsel for the appellant while assailing the aforesaid order of remand, raised following grounds:—

(1) That the order of remand is beyond the scope of the remand under the provisions of Order 43, Rule 23, Civil Procedure Code and Rule 23-A of the Civil Procedure Code. In support of his contention he placed reliance on (2008) 8 SCC 485 : AIR 2008 SC 2579, Municipal Corporation, Hyderabad v. Sunder Singh and also on a judgment passed by this Court in the case of Sunil Parashar v. Kapil Khanna, reported in 2017 (3) M.P.L.J. 114;

(2) That the lower Court has failed to appreciate that the application for amendment was barred by doctrine of res judicata. In support of his contention, he placed reliance on the judgment of the Apex Court in the case of (2008) 4 SCC 615 : AIR 2008 SC 1272, Barkat Ali v. Badri Narain (D) by L.Rs.;

(3) That after the amendment in the provisions of Order 6, Rule 17, in an application seeking amendment the applicant is under obligation to plead and prove due diligence, but the application has been erroneously allowed. He referred to the judgment passed by this Court in the case of Sonu Dubey v. Virendra Kumar Rai, reported in 2014 (2) M.P.L.J. 433. He also submitted that the order of allowing the application for amendment has caused seriously prejudice to the case of the defendant. The suit was filed for declaration without any relief of the possession whereas, the plaintiff was not in the possession of the suit plot on the da