JIJIMON Vs. CELIN ANTONY

JUDGEMENT

(1.) The counter petitioner/defendant came up with this Original Petition under Article 227 of the Constitution of India challenging the order dated 21.6.2013 in I.A.No.4231 of 2012 in O.S.No.467 of 2011, on the file of the Court of the Principal Sub Judge, Kottayam. The said application was filed for amending the plaint by incorporating a prayer for establishing the right claimed by the plaintiff based on irrevocable licence claimed by her over the property wherein she was residing. Earlier, the suit was filed for injunction simplicitor against the disturbance of her peaceful residence and possession of the residential plot (part of the building) . The amendment application was filed seeking to amend the plaint by incorporating a prayer as well as a pleading in the plaint and it was allowed by the learned Sub Judge after hearing both the parties under the impugned order.

(2.) The main challenge against the impugned order is that the lower court has not considered the dismissal of an earlier application, which was not pressed into service by the party concerned. Earlier, an amendment application was filed by the plaintiff for the same relief, which was subsequently not pressed into service and ultimately it was dismissed as not pressed. It is thereafter the present application was filed seeking amendment of the plaint by incorporating the prayers noted in the application. The contention raised by the learned counsel for the petitioner is that the present application is hit by Section 11 and Order II Rule 2 of CPC. The further contention raised by the petitioner is that it will alter the nature and character of the suit and hence it is not permissible to allow the amendment as prayed for by the petitioner.

(3.) In order to have application of either doctrine of res judicata or Section 11 CPC, there should be an adjudication of the issue pertaining to the parties to the suit or to the proceedings by a competent Court. Otherwise, there cannot be any application of either the doctrine of res judicata or Section 11 CPC. It can be made available in different stages of a proceeding when there is attainment of finality or conclusiveness of any fact in dispute by the court in an earlier stage of the proceeding. The dismissal of an application as not pressed does not involve any adjudication of dispute between the parties. As such, the doctrine of res judicata would not come into play much less Section 11 CPC.