JIWAN KAUR Vs. JASBIR KAUR

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 12. 9. 1996 passed by the learned Civil Judge, Junior Division, Hoshiarpur, vide which the application of the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure was dismissed.

(2.) THE necessary facts are that the plaintiff had filed a suit for declaration to the effect that she is entitled to one-half share in the pension-cum-gratuity, insurance, arrears of pay and other benefits due and payable to late Amrik Singh with other consequential relief for mandatory injunction directing defendants No. 2 to 5 for making payment of the half share of the amount specified above. Defendant No. 1 is the widow of Amrik Singh while the plaintiff Jiwan Kaur is the mother of the deceased. The suit was contested. The very right of the plaintiff to receive any benefit on behalf of the defendants relating to the aforestated amount, was also contested. Defendants No. 2 to 5 are the Union of India, Director General of Border Roads, G. R. F. E. and their officers. During the pendency of the suit, the application under Order 6 Rule 17 was filed by the plaintiff seeking amendment of the plaint and to add the relief of recovery of Rs. 25220/from defendant No. 1, being half share of the money received by her during the pendency of the suit and other consequential amendments were prayed for. This application was opposed by the respondent herein and was finally dismissed by the learned trial Court vide its order dated 12. 9. 1996 which is impugned in the present revision. In order to appropriately determine the controversy raised in this petition it is relevant to refer to some dates. The plaintiff had filed the suit on 25. 4. 1994. The payments were made after the institution of the suit and till 24. 5. 1996, the application for amendment was filed on 16. 8. 1996. It is clear from the above dates that the application for amendment though has been filed late but is certainly within the prescribed period of limitation from the date of the payment. The events have occurred during the pendency of the suit and the relief now being prayed as a result of the amendment is not against defendants No. 2 to 5 but is only against defendant No. 1 who is stated to have received the payments after institution of the suit. The legal plea available to the other defendants would neither alter their nature or substance as the amendment really does not affect them. In fact nothing was brough to the notice of the court by the learned counsel appearing for defendants No. 2 to 6 which would indicate as to how any interest of the respondents is being prejudicially effected. The basic controversy as to whether the plaintiff is entitled to receive half share of the benefits indicated in the plaint would ever be subject matter of the controversy and its nature and scope is not altered by the present amendment. In other words, the nature of the case would continue to be the same and by the amendment sought for, the petitioner does not take the respondents by surprise or a new case. On the contrary, the relief of recovery is a consequential relief and would follow only if the principal relief which was earlier prayed for in the plaint, is allowed in favour of the plaintiff. The amendment does not appear to be barred under any law nor affects rights of the respondents prejudicially to the extent that they cannot be compensated in terms of costs. The only prejudice being caused to the respondent is resulting from the delay which to the respondent is resulting from the delay which is likely to occur in the proceedings and some element of negligence on the part of the petitioner to file such an application belatedly but within the prescribed period of limitation.

(3.) THE learned counsel appearing for the respondent contended that the application for amendment was barred under the provisions of Order 2 Rule 2 inasmuch as it was second application for amendment filed by the plaintiff in a short period. In answer to this the learned counsel for the petitioner contended that the principles of resjudicata or constructive resjudicata are not applicable to the applications filed in a suit. The contention raised on behalf of the respondent does not appear to be well founded inasmuch as Under Section 141 C. P. C. the provisions of the Code applicable to suits would apply to the application and other legal proceedings except the one which have been specifically excluded under that provision. Section 141 of the Code of Civil Procedure reads as under