NIAMATULLAH v. DISTRICT JUDGE ALLAHABAD — 1996 DIGILAW 214 (ALL)

R. R. K. TRIVEDI, J. In this petition caveat has been filed for respondents Nos. 3 to 13 by Shri M. A. Qadeer, Advocate. I have heard learned counsel for the parties. 2. Facts giving rise to this petition are that plaintiff (now represented by respondents Nos. 3 to 13) filed C. C. C. Suit No. 195 of 1971 for ejectment of the defendant from the accommodation in dispute. This suit was decreed on 11-11-1985. Civil Revision No. 575 of 1985 was filed in the court of District Judge, Allahabad, which too was dismissed on 10-8-1987. Thereafter, challenging the aforesaid orders, writ petition No. 20248 of 1987 was filed which was also dismissed. The decree was put in for execution which was registered as Execution Case No. 179 of 1985. In this execution, an objection was filed by petitioner under Section 47, C. P. C. questioning the executability of the decree on various grounds including that the decree is not executable for ejectment from house No. 39 (now new number 42 ). This objection was registered as Misc. Case No. 114 of 1987. However, the objection was rejected on 18-11- 1987. The order rejecting the objection was challenged in Civil Revision No. 372 of 1988. This revision was dismissed in default. Thereafter, application for restoration was filed which too was dismissed on 5- 11-1988. Then an application for restoring the restoration application was filed which was. also rejected on 2-3-1989. These orders were challenged in Writ Petition No. 4600 of 1989. In this petition stay order was granted on 15-7-1989. However, this Court after hearing the parties, vacated the stay order on 22- 8-1989. Then, the respondents made an application for amending warrant for delivery of possession by mentioning house No. 39/42 in place of 39/43. This application was rejected on 27-6-1995. Aggrieved by this order, the decree-holders filed Civil Revision No. 958 of 1995, Respondents then made an application for amendment of the plaint of S. C. C. Suit No. 195 of 1971 for correcting the relief clause wherein by mistake house number was wrongly described as 39/43 which in fact should have been 39/42. This application was opposed by petitioner. However, learned trial court allowed this application vide order dated 30-1-1996. Aggrieved by this order petitioner filed Civil Revision No. 53 of 1996. This application was opposed by petitioner. However, learned trial court allowed this application vide order dated 30-1-1996. Aggrieved by this order petitioner filed Civil Revision No. 53 of 1996. Both the aforesaid revisions have been heard together and decided by a common order dated 7-2-1996, aggrieved by which petitioner has approached this Court under Article 226 of the Constitution. 3. Learned counsel for petitioner has submitted that the order of the court below dated 27-6-1995 rejecting the application of respondents (59-C) was res-judicata as same amendment which was sought latter on was considered. However, the trial court illegally allowed the subsequent application (3-C) vide order dated 30-1-1996. The application was barred by principles of res-judicara which can be invoked not only in separate proceedings. They also get attracted in subsequent stage of the same proceedings. Once an order made in course of the proceedings becomes final, it would be binding on the parties at the subsequent stage of the same proceedings. Learned counsel has placed reliance in cases or Y B. Patil v. Y. L. Patil, AIR 1977 SC 392 and Laxmi Devi v. Chandra Mani Devi, AIR 1971 All 506 . 4. Second submission of the learned counsel for petitioner is that as Suit No. 195 of 1971 was decreed by the Court below on 11-11-1985, thereafter revision was dismissed on 10-8-1987 and Writ Petition No. 20248 of 1987 was dismissed by this Court, the trial court was not legally competent to entertain the application for amendment of the plaint as the decree stood merged in the decree of the higher court. The order dated 30-1- 1996 was thus wholly illegal and without jurisdiction. The revisional court has failed to consider this important aspect of the matter. In support of this submission reliance has been placed in case of Durga Singh v. Wahid Raza, AIR 1965 All 226 (D. B. ). Learned counsel for petitioner has also submitted that the plaint could not be allowed to be amended at this belated stage. 5. Learned counsel for petitioner lastly submitted that if the court below allowed the plaint to be amended, the defendant petitioner should have been permitted a fresh opportunity to file written statement and the course adopted by the court below is violative of the principles of natural justice. 6. 5. Learned counsel for petitioner lastly submitted that if the court below allowed the plaint to be amended, the defendant petitioner should have been permitted a fresh opportunity to file written statement and the course adopted by the court below is violative of the principles of natural justice. 6. Shri M. A. Qadeer, learned counsel for respondents, on the other hand, has submitted that it was on account of the clerical mistake that in relief clause of the plaint, house number was wrongly described as 39/43 while it should have been 39/42. However, the parties have^ con tested the suit with full knowledge that defendant petitioner is occupying house No. 39/42 and by allowing application for correction of the relief clause, no prejudice has been caused to the petitioner. In the body of the plaint in so many paragraphs the house number mentioned was 39/42. Such a clerical mistake could be allowed to be corrected in the interest of justice at any stage. 7. The second submission is that the order dated 27-6-1995 was passed on the application (59-C) for correction of the warrant for delivery of possession. The Court below took the view that as in the relief clause of the plaint house number is mentioned as 39/43, the decree has been prepared showing that unless and until the plaint is corrected, the warrant for delivery of possession cannot be corrected. In view of these observations, the second application was filed for amendment of the plaint. Thus it is incorrect to say that the application for amendment of the plaint was barred by principles of res-judicata and the order dated 30-1-1996 suffers from any illegality. Learned counsel has submitted that petitioner filed objection under Section 47, C. P. C. resisting the execution of the decree on the ground that the war rant for delivery of possession cannot be executed against house No. 39/42 which is being occupied by the petitioner. However, this objection was considered and rejected on merits. The order has become final after dismissal of the revision. The stay granted in Writ Petition No. 4600 of 1989 has also been vacated on 22-3-1995 and now the present writ petition has been filed only to get the interim order to delay the execution of the decree. Substantial justice has been done between the parties and petitioner is not entitled for any relief. 8. The stay granted in Writ Petition No. 4600 of 1989 has also been vacated on 22-3-1995 and now the present writ petition has been filed only to get the interim order to delay the execution of the decree. Substantial justice has been done between the parties and petitioner is not entitled for any relief. 8. I have considered the submission of the learned counsel for parties. The first submission of the learned counsel for petitioner was with regard to the plea of res-judicata that the amendment application of the petitioner was already rejected on 27-6-1995 and the order dated 30-1-1996 passed on subsequent application is illegal and without jurisdiction. However, this contention does not appear to be correct. From a perusal of the order dated 27-6-1995 it is clear that the application (59-C) was filed for amending the warrant for delivery of possession and not the plaint. Thus, it cannot be said that the two applications were for the same relief. The application for amendment of the plaint and the application for amendment of warrant for delivery of possession were altogether different applications for different objects and seeking amendment of two different documents. The principle of res-judicata could not be applied in these facts and circumstances. The cases relied on by the learned counsel for petitioner are not applicable and clearly distinguish able. 9. The second submission of the learned counsel for petitioner, that the Court was not competent to entertain and allow the amendment application as the writ petition was dismissed by the High Court challenging the aforesaid decree, cannot be accepted. There is no doubt about the legal position that a writ petition is not continuation of the original proceedings. A Full Bench of this Court in case of Udai Bhan Singh and others v. Board of Revenue of Uttar Pradesh and others, reported in AIR 1974 All 202 , has clearly held that a proceeding under Article 226 of the Constitution is not a continuation of a suit or proceedings giving rise to it and there exists a clear distinction between an appeal and a writ petition directed against orders passed therein. Thus, there was a question of merger of decree of the trial court decree in the order passed in the writ petition arising therefrom. Thus, there was a question of merger of decree of the trial court decree in the order passed in the writ petition arising therefrom. In the case reported in AIR 1965 All 226 the Division Bench was considering the case of al lowing an amendment application after dismissal of the second appeal under Order XLI, Rule 11, C. P. C. and the Division Bench held that even on dismissal of the second appeal under Order XLI, Rule 11, C. P. C, the decree of subordinate court shall stand merged in the appellate decree and the amendment application could not be entertained fry the trial court. In my opinion, the case relied on by the learned counsel for petitioner is clearly distinguishable on facts and does not help the petitioner in any way. 10. The third submission of learned counsel for petitioner that the application was moved at a belated stage and should not have been allowed is also not accept able. It may be noticed that Rule 17 of Order VI, C. P. C. does not put any time-limit for entertaining and allowing amendment of the pleadings. It has been left to the judicial discretion of the Court that the Court may at any stage of the proceedings allow either party to alter or amend its pleading. Such a wide discretion has been given only to avoid injustice on account of some mistake like the one in the present case. 11. The last submission of the learned counsel for petitioner that petitioner should have been allowed opportunity to file additional written statement also can not be accepted as the concurrent finding of both the courts below is that both the parties contested the suit with full knowledge that the number of the house in dispute is 39/42. It was by way of inadvertent and clerical mistake that in relief clause house number was wrongly described as 39/43 while in the body of the plaint, in the notice served on petitioner before filing suit, house number mentioned was 39/42. Such a correction of plaint could be permitted at any stage in the interest of justice. In my opinion, the contention of the learned counsel for respondents is correct that substantial justice has been done between the parties and no interference is called for by this Court under Article 226 of the Constitution. Such a correction of plaint could be permitted at any stage in the interest of justice. In my opinion, the contention of the learned counsel for respondents is correct that substantial justice has been done between the parties and no interference is called for by this Court under Article 226 of the Constitution. The orders passed by the courts below are perfectly justified in the facts and circumstances of the case and do not suffer from any error of law or jurisdiction. 12. For the reasons stated above, this writ petition has no merit and is accordingly rejected. The interim order dated 14-2-1996 is vacated. Petition rejects. .