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Jiwan Kaur Vs. Jasbir Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 3940 of 1996
Judge
Reported in(1998)118PLR816
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantJiwan Kaur
RespondentJasbir Kaur and ors.
Appellant Advocate Arun Jain, Adv.
Respondent Advocate B.S. Sodhi, Adv. for Respondent No. 1 and; Anil Rathee, Adv. for Respondent Nos. 2 to 6
DispositionPetition allowed
Cases ReferredMahant Sukhdev Puri v. Smadh Baba Mauzpuri
Excerpt:
.....doctrine of resjudicata or constructive resjudicata are intended to apply to the stages in a suit as well. to prevent abuse of the process of the court as well as to avoid unnecessary multifarious applications being filed on the same premises is the basic legislative intent of any procedural law......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,.....
Judgment:

Swatanter Kumar, J.

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 trial Court while noticing the basic controversy between the parties being related to the entitlement of share of the plaintiff, went on to reject the application of amendment mainly on the ground that the amount has been paid to the nominee and the plaintiff should have moved the application immediately upon having come to know of such payment. This reason, by itself, in my view would not be sufficient to decline the relief which is merely a consequential relief to the applicant at the stage of the suit when evidence of the parties has not commenced. The learned trial Court relied upon judgment of this Court in the case of Mahant Sukhdev Puri v. Smadh Baba Mauzpuri, 1985(1) All India Land Laws Reporter 156 but that case has no application to the facts of the present case. In that case the entire defence was being changed from the one which was being taken by the defendants in their original written statement. In the present case if the petitioner is not entitled to half share, rest of the relief is bound to follow but if she is found to be entitled to half share then the relief, of recovery from the nominee would be fully justifiable. It is settled principle of law that nominee is holder in due course and is treated in law as a trustee on behalf of the actual claimant. If the plaintiff is found entitled to the share in the entire dues as prayed for, it would entirely be unfair to direct the plaintiff to again litigate with respondent No. 1 for recovery of money received by her in her character as nominee of the deceased.

4. 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 :-

'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.

(Explanation- In this section, the expression 'proceedings' includes proceeding under Order IX, but does not include any proceeding under Article 226 of the Constitution.)'

5. The provisions of Order 2 Rule 2 and which are based upon the doctrine of resjudicata or constructive resjudicata are intended to apply to the stages in a suit as well. The basic principle being that no party should abuse the process of the court and keep on filing application one after the other for the same cause of action. To prevent abuse of the process of the court as well as to avoid unnecessary multifarious applications being filed on the same premises is the basic legislative intent of any procedural law.

6. But in the present case, this would have no application inasmuch as the payments were made even after filing of the first application for amendment. Further more, the earlier application for amendment, admittedly related to the relief against defendants No. 2 to 5 while the present application for recovery based on a subsequent event is directed against defendant No. 1 in the suit alone. Thus I have no hesitation in, coining to the conclusion that the trial Court rightly field that the application as such was not barred by the principle of resjudicata or constructive resjudicata.

7. For the reasons afore-stated the order dated 12.9.1996, is hereby set aside. The application of the petitioner under Order 6 Rule 17 seeking the relief of recovery is allowed. Amended plaint be filed before the next date of hearing or 18.3.1998 whichever is earlier. The petition is allowed subject to payment of Rs. 1500/- as costs. Costs being conditional to be paid alongwith the filing of the amended plaint if not already filed. This petition is accordingly disposed of.


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