In this second appeal, the High Court dismissed the appellant's challenge to the rejection of a written statement amendment, holding the plea barred by res judicata. The court upheld the appellate court's decision regarding mesne profits payment and court fee procedures.
The appeal is dismissed; no order as to costs.
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Neutral Citation No. - 2024:AHC-LKO:18136
Court No. - 4
Case :- SECOND APPEAL No. - 275 of 2003
Appellant :- Smt. Mohammadi And 6 Ors. Respondent :- Ahmad Ali Counsel for Appellant :- Mohd. Arif Khan,Atiya Abid,Girija Shankar Tripathi,Mohammad Abid Ali,Mohammad Tauseef Siddiqui
Counsel for Respondent :- R.K. Sharma,Faisal Ahmad Khan
Hon'ble Rajnish Kumar,J.
the written statement by way of amendment could have been taken in the said suit but it was not taken, therefore, it is barred by constructive res-judicata. The plea, otherwise also is misconceived and not tenable because the boundaries of the land in dispute were one and the same in the earlier suit and in the present suit. The earlier suit filed by the appellant-defendant was dismissed and First Civil Appeal filed against the same and the second appeal filed before this Court was also dismissed by means of order dated 06.10.2018, therefore, the issue has become final. Thus, submission is that the application for amendment has rightly and in accordance with law been rejected. He further submits that mesne profits has rightly been awarded and the direction for payment of court fee before execution has rightly been made in view of provision made in Order 20 Rule 12 of Civil Procedure Code and the respondentplaintiff shall pay the requisite court fee accordingly. Thus, the submission of learned counsel for the respondent is that grounds taken by the appellant are misconceived and not tenable and no substantial question of law arises in this appeal.
circumstances of the present case because in the said case, the amendment was rejected on the ground of delay whereas in the present case, the amendment has not been rejected on the aforesaid ground.
"12. Decree for possession and mesne profits.—(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree—
(a) for the possession of the property;
1[(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent.
(ba) for the mesne profits or directing an inquiry as to such mesne profits;]
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until—
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever, event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
the respondent/plaintiff, it shall be deposited accordingly.
(Rajnish Kumar,J.)
Order Date :- 28.2.2024 Harshita
Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether an application for amendment of written statement at the appellate stage is maintainable when the plea barred by res judicata and boundaries of land are same as prior suit.
Whether direction to pay court fee before execution for mesne profits decree violates the Civil Procedure Code.
Colour shows how this judgement treated each authority
Harcharan vs State of HaryanaDistinguished¶15
Harcharan vs State of Haryana; 1982 3 SCC 408 · Who else cites this
2 provisions across 1 enactments
Smt. Mohammadi And 6 Ors.
Ahmad Ali
Rajnish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
