Dismissed

Maiku Lal v. Distt. Judge, Lucknow and 7 Others

Allahabad HC17 Jul 2023/2688/2023

Case brief

AI extract

What is this about?

In this writ petition under Article 227, the High Court of Judicature at Allahabad (Lucknow Bench) dismissed the petitioner's challenge to impugned orders rejecting a second application for amendment of plaint. The court held the application was barred by res judicata as the identical prayer had been previously rejected and attained finality.

What did the court decide?

The writ petition challenging the rejection of the amendment application is dismissed.

Maiku Lal Vs Distt. Judge, Lucknow and 7 Others — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:46295

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Court No. - 20

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Case :- MATTERS UNDER ARTICLE 227 No. - 2688 of 2023

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Petitioner :- Maiku Lal

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Respondent :- Distt. Judge, Lucknow And 7 Others Counsel for Petitioner :- Durga Prasad Dubey,Panna Lal Gupta,Subrat Gupta

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Hon'ble Manish Mathur,J.

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Supplementary affidavit filed today is taken on record.

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Heard Mr. Panna Lal Gupta, learned counsel appearing for petitioner. Notices to opposite parties stand dispensed with.

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Petition under Article 227 of the Constitution of India has been filed challenging order dated 20.02.2023 passed by the trial court in Regular Suit No.572 of 1986 whereby application for amendment of plaint has been rejected. Also under challenge is the revisional order dated 18.04.2023 passed in Civil Revision No.44 of 2023 upholding the trial court's order.

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Learned counsel for petitioner submits that initially, the petitioner's father had filed aforesaid suit for permanent injunction in which in year 2009, application for amendment of plaint was filed requiring amendment of house number from 539 Kha /86 Kha to House no.539 Ba /86B. The said Application had initially been allowed but the said order was recalled subsequently and the Amendment Application was rejected vide order dated 07.05.2011. It is submitted that due to incorrect advice from counsel, the said order could not be challenged and, therefore attained finality. Subsequently, the original plaintiff passed away and petitioner being his son was substituted in his place and came to know the fact that house number was incorrectly indicated in the plaint leading to filing

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of second Amendment Application which has been rejected by means of impugned orders.

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It is submitted that a perusal of the Amendment Application will indicate that only house number is being sought to be changed without any consequent change in the boundaries of the property indicated in the plaint and as such the Amendment sought was only to avoid multiplicity of the proceedings and did not change the nature of suit in any manner nor would it lead to any prejudice being caused to the defendants who have entered the shoes knowing fully well the property which is subject matter of dispute. As such, it is submitted that the courts below have erred in rejecting the Amendment Application only on the ground of res judicata and also that the application had been preferred after 37 years of filing of suit.

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Upon consideration of submissions advanced by learned counsel for petitioner and perusal of material on record, it appears that the impugned orders have rejected the Amendment Application primarily on the ground that it is barred by principles of resjudicata as also the fact that the Amendment Application has been preferred after 37 years of institution of suit.

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So far as the reasoning in impugned orders is concerned, it is evident and as has been held by Hon'ble the Supreme Court in Y.B. Patil & others v. Y.L. Patil reported in AIR 1977 SC 392 : (1976) 4 SCC 66 principles of res judicata are applicable at various stages of the same proceedings due to which once the earlier Amendment Application was rejected by the trial court vide order dated 07.05.2011, which having attained finality, the same prayer as made in the second Application seeking amendment of plaint was not maintainable. Even otherwise, the petitioner having stepped into shoes of Original Plaintiff is not

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entitled to take a plea which may be in variance with that of Original Plaintiff. The second Application for amendment of plaint seeking the very same amendment as was rejected by trial court in year 2011 and which attained finality, in the considered opinion of this Court, could not have been sought for since it was clearly barred by principles of res judicata, which cannot be ignored merely on the ground that rejection of Amendment Application would lead to multiplicity of proceedings.

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In view of aforesaid discussion, no exception can be taken to orders impugned in the present petition which being devoid of merits is dismissed at the admission stage itself. There shall be no order as to costs.

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Office is directed to get a copy of this order placed on file of Regular Suit No.572 of 1986 pending in Court of Additional Civil Judge (J.D.), Room No.39, Lucknow.

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Order Date :- 17.7.2023 kvg/-

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Digitally signed by :- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench

Maiku Lal v. Distt. Judge, Lucknow and 7 Others

Case brief

What is this about?

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Maiku Lal v. Distt. Judge, Lucknow and 7 Others

Case brief

What is this about?

What did the court decide?

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