SWARAN SINGH Vs. SURINDER KUMAR

JUDGEMENT

(1.) THIS Appeal lays siege to the Order dated 22.12.2010 passed by the learned Single Judge dismissing the Appellants Suit pursuant to an application filed under Section 151 of the Code of Civil Procedure, 1908 (CPC for short). We have summoned the Trial Court records and have heard the matter in complete detail.

(2.) THE Plaintiff has already filed two applications seeking amendment to the Plaint which were rejected by the High Court and against which he has approached the Honble Supreme Court without success. It is not in dispute that the third application for amending the Plaint was pending but remained unadjudicated at the time when the Suit was dismissed. We desist from giving a detailed account of the litigation as it will make this Judgment needlessly prolix. However, it is germane to mention that the learned Single Judge had, by Order dated 19.11.2008, framed as many as nine Issues; had granted the parties an opportunity to file List of Witnesses within three weeks; had directed the Plaintiff to file affidavit by way of Examination-in-Chief; and had further directed the Joint Registrar to fix the dates for cross-examination of the Plaintiffs Witnesses. On that date, all other pending applications had been posted for hearing on 23.11.2009. THE impugned Order came to be passed on 22.12.2010 consequent upon the filing of an application under Section 151 of the CPC by the Defendant. We think it relevant to mention that the Defendant had also previously filed an application under Order VII Rule 11 of the CPC which was rejected. Learned counsel for the Respondent/Defendant submits that that application related only to the question of limitation. Even if that is so, it seems to us that the principle of issue estoppel would preclude the Court from entertaining another application under Order VII Rule 11 of the CPC based on the same factual matrix. In other words, if it was the Defendants contention that the Plaint ought to have been rejected on the ground that there was material suppression of relevant facts, that argument ought to have been ventilated under the said application.

(3.) THE first application for amendment to the Plaint was allowed by the learned Single Judge opining that "though there is a variation or inconsistency regarding the nature of the claims sought to be introduced ......the ends of justice require the same should be allowed". THE Defendants had filed an Appeal against the Order which came to be accepted by the Division Bench. It was observed by the Appellate Court that there was no suppression of material particulars and that a period of three years had elapsed between the filing of the Plaint and the preferment of the application. THE Division Bench also recorded that an abuse of the Court process would be caused if the amendment were to be allowed. Significantly, neither was a prayer for dismissal of the Suit made nor did the Trial Court think it proper, even in the background of the observations pertaining to the abuse of Court process and withholding of material particulars, to dismiss the Suit. THE second amendment application was also dismissed and in Appeal one of us (Vikramajit Sen, J.) had not thought it necessary to interfere with that Order.