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Allahabad High Court · body

1986 DIGILAW 920 (ALL)

Nanhec Devi v. Sumitra Devi

1986-12-04

A.N.DIKSHITA

body1986
Judgment A.N. Dikshita, J. 1. THE instant civil revision has been filed under section 115 CPC against an order dated 15-4-85 passed by Civil Judge, Bareilly in Original Suit No. 15 of 1976 rejecting an application filed by the plaintiff Nanhee Devi under Order VI Rule 17 CPC for impleading a new defendant Puneet Kumar as defendant No. 4 in the suit. 2. THE plaintiff Smt. Nanhee Devi filed a suit (No. 15 of 1976) that she be declared as the owner to the extent of half share of the property in dispute. It was alleged in the plaint that earlier the property in suit was owned by one Jwala Prasad who left two sons Jagannath Prasad and Jagdamba Prasad behind him. On the death of Jwala Prasad the property was inherited by his said two sons. After the death of Jagdamba Prasad his share devolved upon Smt. Bhagwan Devi. When Smt. Bhagwan Devi died, her half share was inherited by her two daughters, namely, plaintiff Nanhee Devi and defendant no. 2 Smt. Satto Devi. Jagdamba Prasad who had been impleaded as defendant no. 1 died on 31-3-76 while his married wife Smt. Hans Mukhi Devi expired on 17-9-70. On the death of Jagdamba Prasad (defendant no. 1) plaintiff and defendant no. 2 became the legal heir. Thus plaintiff claimed half of the share in the property. During the proceedings of the suit one Puneet Kumar son of the plaintiff Smt. Nanhee Devi filed an application under Order 1 Rule 10 (ii) CPC for his impleadment on the ground that it is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. This application filed by Puneet Kumar was contested by the defendant no. 1/1 Smt. Sumitra Devi. The plaintiff Smt. Nanhee Devi did not oppose this application. By an order dated 8-1-85 passed by the trial court this application was dismissed. 3. FEELING aggrieved against the order dated 8-1-85 dismissing the said application Puneet Kumar filed an application under Order XLVII Rule 1 CPC for the review of the order dated 8-1-85. This application for the review of the order dated 8-1-85 was again dismissed on 20-2-85. It would thus reveal that Puneet Kumar the son of the plaintiff exhausted the remedies available to him for being impleaded as a party to the suit. This application for the review of the order dated 8-1-85 was again dismissed on 20-2-85. It would thus reveal that Puneet Kumar the son of the plaintiff exhausted the remedies available to him for being impleaded as a party to the suit. Puneet Kumar thus failed in his object to get himself impleaded as a party in the suit. 4. HOWEVER, his mother Nanhee Devi plaintiff filed an application under Order VI Rule 17 CPC for the amendment of the plaint thus arraying Puneet Kumar as a defendant in the suit. This application was again opposed by defendant no. 1/1 Smt. Sumitra Devi on the ground that the application is not maintainable under Order VI Rule 17 CPC as the application of Puneet Kumar filed under Order I Rule 10 CPC for being impleaded as party has already been rejected. It was further alleged that the mother and son are in collusion with each other and in fact the son Puneet Kumar has no cause of action in the suit. The trial court after a careful consideration of the provisions of Order VI Rule 17 CPC came to the conclusion that the application being not merited deserves to be dismissed and by the order dated 15-4-85 rejected the same. It was held that Puneet Kumar is not a necessary party for the effectual and complete adjudication of the suit. Moreover, the application under Order VI Rule 17 CPC was found to be belated when the suit itself was instituted as early as the year 1976. Feeling aggrieved against the order dated 15-4-85 the plaintiff has preferred this revision. 5. LEARNED counsel for the parties have been heard. 6. THE plaintiff claimed the relief that she be declared the owner to the extent of half share in the property in dispute. It was also claimed that it be declared that Sumitra Devi defendant no. 1/1 has no right or title in the property in dispute. THE plaint allegations reveal that Smt. Sumitra Devi defendant no. 1/1 is the wife of Jagdamba Prasad as claimed by her but in fact defendant no. 1 Jagdamba Prasad never married her. It was also claimed that it be declared that Sumitra Devi defendant no. 1/1 has no right or title in the property in dispute. THE plaint allegations reveal that Smt. Sumitra Devi defendant no. 1/1 is the wife of Jagdamba Prasad as claimed by her but in fact defendant no. 1 Jagdamba Prasad never married her. It was alleged that no will was ever executed by Jagdamba Prasad in favour of Smt. Sumitra Devi and if it is found that any such will was ever executed, it be declared to be invalid and not binding as the same has been obtained by coercion and undue influence by Smt. Sumitra Devi from Jagdamba Prasad. The suit was contested on behalf of Smt. Sumitra Devi who claims herself to be the owner and has also been declared as such in the proceedings under the Urban Ceiling Act. Learned Counsel for the applicant Sri S. K. Varma Advocate has submitted that the trial court has acted in the exercise of its jurisdiction illegally and with material irregularity in rejecting the application of the plaintiff for the amendment of the plaint. Catena of decisions have been cited at the bar justifying that the plaintiff was entitled to alter or amend the pleadings which are necessary for the purpose of determining the real questions in controversy between the parties. It is true that the substantive justice be not obstructed as procedural law is intended to facilitate it as has been held by the Supreme Court in the case of M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 . Again it cannot be disputed that the court should be extremely liberal in granting prayer for amendment of the pleading unless serious injustice or irreparable loss is caused to the other side. It was held in the case of Haridas Aildas Thadani v. Godrej Rustom Kermani, AIR 1983 SC 319 an amendment may not be granted where the nature of the suit was sought to be altered or there was any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arrived. The Supreme Court in the case of Pirgonda Horgonda Patil v. Kalgonda Shilgonda Patil, AIR 1957 SC 363 held that the test for allowing the amendment is to find out where the proposed amendment works any serious injustice to the other side. The Supreme Court in the case of Pirgonda Horgonda Patil v. Kalgonda Shilgonda Patil, AIR 1957 SC 363 held that the test for allowing the amendment is to find out where the proposed amendment works any serious injustice to the other side. From the recitals of the above decisions the learned counsel for the applicant has submitted that the trial court has exercised jurisdiction illegally and with material irregularity in refusing to grant permission for the amendment of the plaint. However, counsel for the parties clearly concede that granting of amendment to pleadings is within the discretion of the Court, but such a discretion has to be governed by judicial discretion and not arbitrarily or unjustly or even illegally. The trial court found the application for amendment filed under Order VI Rule 17 CPC to be a dubious device to introduce a new case altogether changing the character of the suit. A new case as has been found by the trial court was sought to be developed by bringing the son as a defendant when the son himself failed to be impleaded under Order I Rule 10 CPC. Admittedly, the son of the plaintiff Puneet Kumar filed an application under Order I Rule 10 (ii) CPC for being impleaded as a party on the ground that he is a necessary and proper party. However, finality reached when this application was rejected. Another seal of finality was affixed when the review application for reviewing the order dismissing an application under Order 1 Rule 10 (ii) CPC was also rejected. In the case of Kanhu Ganda v. D. Kodandi Dora, AIR 1986 Orissa 191, it was held that it would not be open to a party at a later stage of the proceedings to seek the relief on the same ground by taking recourse of Order VI Rule 17 CPC. 7. LEARNED counsel for the opposite party Sri Swami Dayal Advocate has streneously urged that the trial court neither acted in exercise of its jurisdiction illegally nor with material irregularity in rejecting the application under Order VI Rule 17 CPC. The trial court has rightly found this application for the amendment of the plaint as collusive and bereft of any merit. 8. IT has further been emphasised by the learned counsel for the respondent that finality to judicial decisions shall be maintained. The trial court has rightly found this application for the amendment of the plaint as collusive and bereft of any merit. 8. IT has further been emphasised by the learned counsel for the respondent that finality to judicial decisions shall be maintained. An application for impleadment filed by Puneet Kumar was rejected as well as the application for the review of the order rejecting application for impleadment. The applicant who is the mother of Puneet Kumar was a party to such proceedings and had at no stage objected to the applications so filed by Puneet Kumar. IT is on this premise that it has been urged that the application filed by the applicant (Smt. Nanhee Devi) for amendment to implead Puneet Kumar in the array of defendants was rightly rejected and in any case the orders passed earlier on the applications of Puneet Kumar having become final are binding on the applicant as well. There is adequate force in this submission. The principle of res-judicata is based on the need of giving a finality to judicial decision. Once res is judicata it shall not be adjudged again. A matter whether on a question of fact or a question of law having been decided between the two parties in one suit or proceedings then such decision is final. None of the parties would be allowed to canvass the matter again. The decision being correct, the parties cannot be permitted to agitate against the same and would have to proceed on the basis that the previous decision was correct. The court would not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings as held in the case of Satyadhan Ghosal v. Smt. Deorajin Devi, AIR 1960 SC 941 . It was also held by the Supreme Court that the principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure ; but even where S.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court aswell as any higher court must in any future litigation proceed on the basis that the previous decision was correct. 9. IT is, thus clear that the plaintiff-applicant wanted her son Puneet Kumar to be impleaded as a party. The result of this is that the original court aswell as any higher court must in any future litigation proceed on the basis that the previous decision was correct. 9. IT is, thus clear that the plaintiff-applicant wanted her son Puneet Kumar to be impleaded as a party. The application of Puneet Kumar under Order 1 Rule 10 though resisted by Smt. Sumitra defendant No. 1/1 was not opposed by the plaintiff. The plaintiff has thus acquiesced into the order which is binding on her in the rejection of the application of Puneet Kumar for impleadment. Circumventingly she has now filed the application for amendment of the plaint. The trial court found this application as ill-meritted and rejected the same. Another aspect of the case is that the matter is pending between the plaintiff-applicant and Smt. Sumitra Devi defendant no. 1/1. The postulates of Order VI Rule 17 provide for altering or amending the pleadings for the purpose of determining the real question in controversy between the parties. IT is clear that the plaintiff-applicant had sought a declaration in her favour in respect of the property which has allegedly devolved on Smt. Sumitra Devi. IT is thus clear that the real questions in controversy as are existing require to be determined between the plaintiff-applicant and Smt. Sumitra Devi In any case there is no controversy which requires determination between the plaintiff-applicant and her son Puneet Kumar who is sought to be impleaded as a defendant. 10. I do not find any jurisdictional error or material irregularity having been committed by the trial court. This civil revision deserves to be dismissed. In the result, the civil revision is dismissed with costs. Revision dismissed.