Gauhati High Court
Nur Islam vs Malek Uddin Ahmed And 16 Ors on 4 October, 2023
Page No.# 1/11
GAHC010013952019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/46/2019
NUR ISLAM
S/O. WAZED ALI, VILL. JOYBHUM, P.O. JOYBHUM, P.S. LAKHIMPUR, DIST.
GOALPARA, ASSAM-783129.
VERSUS
MALEK UDDIN AHMED AND 16 ORS.
S/O. LT. HABIBAR RAHMAN, VILL. JOYBHUM, P.O. JOYBHUM, P.S.
LAKHIPUR, DIST. GOALPARA, ASSAM-783129.
2:MAYEN UDDIN AHMED
S/O. LT. HABIBAR RAHMAN
VILL. JOYBHUM
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
3:MOFIDUL ISLAM
S/O. LT. HABIBAR RAHMAN
VILL. JOYBHUM
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
4:NUR UDDIN AHMED
S/O. LT. HABIBAR RAHMAN
VILL. JOYBHUM
Page No.# 2/11
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
5:HAFIZA KHATUN
D/O. LT. HABIBAR RAHMAN
VILL. DHUMBANDA
P.O. BASHBARI
P.S. BAGUAN
DIST. GOALPARA
ASSAM-783129.
6:MONZUR AHMED
S/O. LT. HABIBAR RAHMAN
VILL. JOYBHUM
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
7:ANOWARA KHATUN
D/O. LT. ABDUL KASHEM
VILL. PADDABARI
P.O. CHUNARI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
8:ABIA KHATUN @ RABIA KHATUN
D/O. LT. MOHIR UDFDIN
W/O. SHOMSHER ALI
VILL. UDMARI
P.O. JALESWAR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
9:KHADEJA KHATUN
D/O. LT. MOHIR UDFDIN
W/O. NISAR AHMED
VILL. KARBALA
P.O. GOBINDAPUR
Page No.# 3/11
P.S. GOALPARA
DIST. GOALPARA
ASSAM-783129.
10:JINNAT ALI
S/O. LT. MOFIZ UDDIN
VILL. HASILAPARA
P.O. GOALPARA
P.S. GOALPARA
DIST. GOALPARA
ASSAM-783101.
11:MOZIRAN NESSA
D/O. LT. MOFIZ UDDIN
W/O. KALU SHEIKH
VILL. HALUAPARA
P.O. LAKHIPUR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-7831293
12:MONSERA KHATUN
D/O. LT. MOFIZ UDDIN
W/O. SOBAHAN ALIU
VILL. HASILAPARA
P.O. GOALPARA
P.S. GOALPARA
DIST. GOALPARA
ASSAM-783101.
13:SATTAR ALI
S/O. EUSUB ALI
VILL. DHUPTOLA
LEWABARI
P.O. RAKHYASINI
P.S. MORNAI
DIST. GOALPARA
ASSAM-783129.
14:NURJAHAN KHATUN
D/O. EUSUB ALI
W/O. CHANDULLAH
VILL. KOKRADANGA
P.O. AOLATOLI
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P.S. BAGUAN
DIST. GOALPARA
ASSAM-783129.
15:ABDUL KHALEQUE
S/O. WAZED ALI
VILL. JOYBHUM
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
16:SHIRAJUL HOQUE
S/O. WAZED ALI
VILL. JOYBHUM
P.O. JOYBHUM
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129.
17:ASSTT. SETTLEMENT OFFICER
LAKHIPUR CIRCLE
LAKHIPUR
P.O. LAKHIPUR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM-783129
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT & ORDER
Advocate for the petitioner : Shri M.U. Mondal, Advocate
Advocate for the respondents : Shri B.C. Das, Sr. Advocate.
Shri S. Hoque, Advocate.
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Date of hearing : 20.09.2023
Date of judgment : 04.10.2023
1. The instant petition has been filed under Article 227 of the Constitution of
India against an order dated 12.12.2018 passed by the learned Civil Judge,
Goalpara in Misc (J) Case No. 59/2018 arising out of T.S. No. 02/2016. The
petitioner was the defendant No. 9 in the aforesaid suit.
2. The suit was instituted for declaration of right, title, interest and also had
challenged three numbers of Sale Deeds. While the suit was pending, the
respondents, as plaintiffs had filed Miss (J) Case No. 22/2018 under Order VI
Rule 17 of the Code of Civil Procedure for amendment of the plaint. The said
petition was however rejected by the learned Court vide Order dated
15.09.2018. Thereafter, another petition under the same provision of Order VI
Rule 17 of the CPC has been filed. The said petition was objected to by the
present petitioner by filing a written objection wherein it was stated that the
present petition was identical to the earlier petition and therefore, the bar of res
judicata would be applicable. However, vide the impugned order dated
12.12.2018, the amendment has been allowed. It is the legality and validity of
the said order by which the amendment was allowed by the Court which is the
subject matter of challenge in this petition.
3. I have heard Shri M.U. Mondal, learned counsel for the petitioner. I have
also heard Shri B.C. Das, learned Senior Counsel for the contesting respondents.
The materials placed before this Court have been duly perused.
4. Shri Mondal, the learned counsel for the petitioner has submitted that the
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earlier application for amendment having been rejected vide order dated
15.09.2018 and the said order not being put to challenge, the respondents -
plaintiffs were precluded from filing another amendment petition with the same
prayer. He submits that the doctrine of res judicata is applicable at various
stages of the suit.
5. In support of his submission, Shri Mondal, the learned counsel for the
petitioner has placed reliance on the decision of Prasana Kumar Keshan vs.
Pradip Gogoi reported in 2017 (4) GLT 787. In the said case, this Court had
laid down that the principles of res judicata would also be applicable in case of
an application filed under Order VI Rule 17 of the CPC. For ready reference, the
relevant portion of the judgment is extracted herein below.
"16. The same ground which was rejected earlier by the order dated
03.03.2015 is sought to be introduced by way of amendment under Order VI
Rule 17 CPC. Thus, in the opinion of this Court, it normally falls within the
principles of res-judicata which prohibits that no Court shall try any suit or issue
in which the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties. It is a well
settled proposition of law that the principle of res-judicata applies also as
between two stages in the same litigation.
6. In the said case, reliance was also placed in the case of U.P. State Road
Transport Corporation vs. State of U.P., reported in (2005) 1 SCC 444,
wherein the Hon'ble Supreme Court held as follows:-
"11. The principle of res judicata is based on the need of giving a finality to judicial
decisions. The principle which prevents the same case being twice litigated is of
general application and is not limited by the specific words of Section 11 of Code of
Civil Procedure in this respect. Res judicata applies also as between two stages in the
same litigation to this extent that a court, whether the trial court or a higher court
having at an earlier stage decided a matter in one way will not allow the parties to re-
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agitate the matter again at a subsequent stage of the same proceedings. (See
Satyadhan vs. Smt. Deorajin Devi AIR 1960 SC 941)."
7. Per contra, Shri Das, the learned Senior Counsel has submitted that the
doctrine of res judicata would be applicable only when the earlier case is
decided on merits. He submits that the contents of the two applications are
different and therefore, there is no error committed by the learned Court in
allowing the amendment which had been done in the interest of justice. In this
connection, the learned Senior Counsel for the respondents has drawn the
attention of this Court to the contents of the two applications which are
annexed to the present Revision Petition. He submits that in the impugned order
dated 12.12.2018, the earlier order has been quoted which would show that the
earlier order was not passed on the merits of the case and was only technical in
nature.
8. The learned Senior Counsel for the respondents has also submitted that the
powers to be exercised by this Court under Article 227 of the Constitution of
India is a restrictive power and unless there is clear jurisdictional error or the
order which has been passed is based on irrelevant and extraneous materials or
where the relevant materials have been ignored, only under those
circumstances, this Court may exercise such powers. He submits that the
impugned order does not fall within the ambit and contours laid down for
invoking the powers under Article 227 of the Constitution of India.
9. In support of his submission, the learned Senior Counsel for the
respondents has placed reliance upon the following case laws.
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(i) Sheodan Singh vs. Daryao Kunwar [ AIR 1966 SC 1332].
(ii) Shalini Shyam Shetty and Anr. vs. Rajendra Shankar Patil [2010
(8) SCC 329].
10. In the case of Sheodan Singh (supra), the Hon'ble Supreme Court has
held that in the former suit, the decision is required to be on merits.
11. In the case of Shalini Shyam Shetty (supra), the Hon'ble Supreme Court
has laid down the principles for invoking the jurisdiction of the High Court under
Article 227 of the Constitution of India.
12. The rival submissions made by the learned counsel for the parties have
been duly considered.
13. First, let us examine the contents of the two applications filed for
amendment of the plaint. The contents of the two applications appear to be
similar and there is no substantial change at all. This Court has also noticed that
while rejecting the earlier application vide order dated 15.09.2018, no liberty
was either sought for or granted to the plaintiff to file another petition. It is also
seen that the petitioner did not seek any time to file additional facts. This Court
has noticed that the discussions made in the impugned order dated 12.12.2018
is not on the objection of res judicata but on the principles of amendment. It
appears that the learned Court has wholly overlooked the objection of res
judicata and has passed the impugned order.
14. There is no manner of doubt that the principle of res judicata is applicable
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at various stages of a suit. The case law referred by the learned counsel for the
petitioner is also clear that such principles are available even in a case of an
application filed for amendment of the pleadings.
15. The principle of application of the doctrine of res judicata in all stages of a
proceeding was settled by the Hon'ble Supreme Court long time back in the
case of Satyadhyan Ghosal vs. Deorajin Debi reported in AIR 1960 SC
941 where in the following was laid down.
"7. The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res judicata, it shall not be
adjudged again. Primarily, it applies as between past litigation and future
litigation. When a matter whether on a question of fact or a question of law has
been decided between two parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher Court or because the
appeal was dismissed, or no appeal lies, neither party will be allowed in a future
suit or proceeding between the same parties to canvass the matter again. The
principle of res judicata is embodied in relation to suits in Section 11 of the
Code of Civil Procedure; but even where Section 11 does not apply, the principle
of res judicata has been applied by courts for the purpose of achieving finality in
litigation. The result of this is that the original Court as well as any higher Court
must in any future litigation proceed on the basis that the previous decision was
correct."
8.The principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial Court or a higher Court
having at an earlier stage decided a matter in one way will not allow the parties
to re-agitate the matter again at a subsequent stage of the same proceedings..."
16. The said principle was again reiterated by the Hon'ble Supreme Court in
the case of Arjun Singh vs. Mohindra Kumar reported in AIR 1964 SC 993
wherein the following has been laid down.
"11. That the question of fact which arose in the two proceedings was
indentical would not be in doubt. Of course, they were not in successive
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suits so as to make the provisions Section 11 of the Civil Procedure Code,
applicable in terms. That the scope of the principle of res judicata is not
confined to what, is contained in Section 11 but is of more general
application is also not in dispute. Again, res judicata could be as much
applicable to different stages of the same suit as to findings on issues in
different suits..."
17. Following the principles laid down in the case of Satyadhyan Ghosal
(supra), in the subsequent case ofU.P. State Road Transport Corporation
vs. State of U.P. and Anr., reported in (2005) 1 SCC 444, the Hon'ble
Supreme Court has laid down as follows:-
"11. The principle of res judicata is based on the need of giving a finality
to judicial decisions. The principle which prevents the same case being
twice litigated is of general application and is not limited by the specific
words of Section 11 of the Code of Civil Procedure in this respect. Res
judicata applies also as between two stages in the same litigation to this
extent that a Court, whether the trial court or a higher court having at an
earlier stage decided a matter in one way will not allow the parties to
reagitate the matter again at a subsequent stage of the same
proceedings."
18. In a recent judgment, the Hon'ble Supreme Court in the case of Central
Bank of India and Ors. vs. Dragendra Singh Jadon reported in (2022)
8SCC 378, has been laid down that the principles of res judicata are attracted
when the subject in issue in a subsequent proceedings have directly and
substantially been the subject in an earlier proceedings between the same
parties in a competent Court. Further, in paragraph 16, the following has been
laid down.
"16.Where an issue could have been raised in earlier proceedings, but has
not been raised, the principle of constructive res judicata would be
attracted to deny relief, for it is not the policy of law that multiple
proceedings should be initiated in Court in relation to the same cause of
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action. Where the cause of action for initiation of proceedings is a
distinctive cause of action, the principles of res judicata would not apply."
19. The learned Senior Counsel for the respondents had strenuously argued
that the present petition under Article 227 of the Constitution of India is not
maintainable and had cited the case of Shalini Shyam Shetty (supra). This
Court is in humble agreement with the principles laid down. However, this Court
is of the opinion that even by adhering to the aforesaid principles, the impugned
order appears to be one wherein the relevant factors have been ignored and the
same is based on factors which were not even the issue for deciding the
application. This Court has also noticed that while rejecting the earlier
application vide order dated 15.09.2018, neither any liberty was sought for nor
the same was granted to file a fresh petition. Accordingly, the order dated
15.09.2018 had attained finality. This Court has also noticed that the contents of
the two applications filed for amendment of the plaint are substantially similar.
This Court has also noticed that the initial order dated 15.09.2018 was not put
to any further challenge. Under those facts and circumstances, this Court is of
the opinion that the impugned order dated 12.12.2018, has been passed
without adhering to the principles of law and is accordingly held to be
unsustainable in law. Accordingly, the order dated 12.12.2018, passed by the
learned Civil Judge, Goalpara in Misc (J) Case No. 59/2018 arising out of T.S.
No. 2/2016 is interfered with and set aside.
20. The Revision Petition accordingly stands allowed.
JUDGE
Comparing Assistant
