Amendment of Pleadings Or.6,Rule 17,18 C.P.C.

The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as be necessary for the purpose of determining the real questions in controversy between the parties;--------provided that no application for amendment shall be allowed after the trial commenced , unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.----sec.18 says failure to amend after order- if party who has obtained an order for leave to amend does not amend accordingly within the time limited for the purpose by the order, r if no time is thereby limited then within fourteen days from the date of the order, he shall not permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court.

RES-JUDICATE AND RES-SUB-JUDIE

EXAMPLES :- 1.PENDING OF CRIMINAL PROCEEDINGS AND DEPARTMENTAL PROCEEDINGS , WHILE PENDING THE CIVIL SUIT ,DOES NOT ATTRACT THE SEC.10 AND SO SEC.10 NOT APPLICABLE=2009[4] A. L. T.800. 2 FIRST SUIT FILED BASING ON WILL AND APPEAL IS PENDING.ANOTHER SUIT FILED BASING ON THE GIFT.THE LOWER COURT DISMISS THE STAY PETITION AS THE CAUSE OF ACTION AROSE ON DIFFERENT DATES-IS ALONE NOT CRITERIA .OTHER INGREDIENTS ALSO ARE TO BE CONSIDERED.SO SEC.10 APPLY S AS THE SUBJECT-MATTER IS ONE AND THE SAME AND PARTIES ARE ONE AND THE SAME-2009[5] A LT 718. [APPEAL-SUIT]. 3. A WRONG DECISION BY MISTAKE ON THE POINT OF JURISDICTION OF THE COURT DOES NOT OPERATE AS RESJUDICATA FOR BATCH OF CASES PENDING AS IT IS PURELY ON THE QUESTION OF LAW DECIDED NOT ON THE SOUND PRINCIPLES OF LAW-PAYMENT OF WAGES ACT- 2009[5] A L T 260 4. JUDGEMENT IN RENT CONTROL COURT AND EX PART INJUNCTION SUIT JUDGEMENT NOT OPERATE AS RESJUDICATA AS THE RENT CONTROL COURT HAS NO JURISDICTION TO DECIDE THE TITLE AND THE EX PARTE INJUNCTION JUDGEMENT IS NOT ON MERITS AND AS SUCH THE SUIT FOR REDEMPTION OF MORTGAGE PROPERTY IS MAINTAINABLE-2009 [5] A L T 584.

RES-JUDICATA SEC.11 & RES-SUB-JUDIE SEC.10 OF C.P.C.

now the important point is that whether sec.10 or sec.11 applies only to suits alone or not ?. writ proceedings, arbitration proceedings , rent control proceedings, company proceedings, succession act proceedings, specific relief act proceedings , society act proceedings, and election proceedings etc., can we apply the above said principles laid down under sec.10,11, to the suit and other than suit or other than suit and other suit proceedings ,is a primary question frequently arising before the courts and public litigants. so many courts decided the matter in so many ways and finally it is settled law that there is no hard and fast rule and it depends on the facts and circumstances of the each case. another question is whether the both suits can be jointly tried if filed and objected under sec.10. and another interesting question is which court has to stay the proceedings under sec.10. another interesting question is whether sec.11 applies to interlocutory petitions also which are filed and decided in a suit, pending disposal of that suit.

RES-JUDICATA SEC.11 & RES-SUB-JUDIE SEC.10 OF C.P.C.

technical words used in both sections :-no court shall proceed with trial ; no court shall try ; any suit ; any suit or issue ; matter directly and substantially in issue ; same in sec.11 also ; between same parties ; same in sec.11 also ; both suits must be in pending ; one is decided and another is pending; former suit and later suit , the later suit is to stayed ; no former suit and later suit, only decided suit and not decided suit ; same cause of action and same subject matter ; same in sec.11 also ; in the same court or any court in India ; same in sec.11 also ; there is only one provision in sec.10 pending in foreign court is not to be consider ; there are 8 explanations in sec.11 ; explanation I - former suit means decided suit but not as first suit or later suit . exp.II - even the right of appeal is there over the decided case[ that means that one cannot say that he/other party filed an appeal and appeal is pending and as such no res-judicata applies ]. exp.III - there must be specific pleadings of facts [matter] by one party and specific denial or admission of pleadings by other party ,in the decided suit or issue, and pending suit ,be one and the same.exp.IV -any matter [facts] which might and ought to have been taken as a ground of defense or attack in such decided case [former suit ] , shall be deemed to have been a matter directly and substantially in issue[decided] in such suit. exp.V - any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.[ it means , it should not be again re agitated in subsequent proceedings like E.P. ]. exp.VI- where some persons litigated bona fide in respect of a public right or private right, claimed in common for themselves and also for others, all persons interested in such right shall , for the purpose of this section, be deemed to have claimed under the persons so litigating [ that means if some persons of a locality file a suit for having access against some group of persons or individual or any authority, and litigated the case bona fide for the purpose of all persons of that locality, the judgement is binding on all the persons of that locality and as such they cannot re agitate it by saying that they are not parties in former suit -decided suit].exp.VII - the principles of res-judicata apply in execution proceedings also [ that means the matter decided in suit proceedings and matter decided in execution proceedings , should not be re agitated in execution proceedings or in subsequent stages of execution proceedings - constructive resjudicata].exp.VIII- when a small cause court decided any issue , again the same can not be re agitated in any suit of original jurisdiction ].

RES-JUDICATA SEC.11 & RES-SUB-JUDIE SEC.10 OF C.P.C.

WHAT IS AN ISSUE = POINT TO BE DECIDED BY THE COURT ,FRAMED ON THE PLEADINGS OF BOTH PARTIES THAT IS ON THE PLEADINGS OF PLAINT AND WRITTEN STATEMENT OF PLAINTIFF AND DEFENDANT RESPECTIVELY. ISSUE MEANS DISPUTE POINT ARISES ON THE SUBJECT MATTER OF THE SUIT. WHAT IS THE SUBJECT MATTER OF THE SUIT = CLAIMING OF SOME RIGHTS ,TITLES AND RELIEFS OVER A SPECIFIC PROPERTY/IES OR STATUS, WHETHER TANGIBLE OR INTANGIBLE . FOR EXAMPLE IF "A" FILED A SUIT FOR DECLARATION OF TITLE AND POSSESSION OF CERTAIN PROPERTY , CLAIMING RIGHTS OVER IT AGAINST "B" IN A COURT OF LAW. AGAIN "A" OR "B" SHOULD NOT FILE THE SAME SUIT IN ANOTHER COURT OR IN THE SAME COURT. IF FILED THE LATER SUIT IS TO BE STAYED BY THE COURT IN WHICH THE LATER SUIT IS FILED , TILL THE DISPOSAL OF FIRST SUIT. THEN IT IS CALLED AS RES-SUB-JUDIE UNDER SEC.10 OF C.P.C. IF THE FIRST SUIT IS DECIDED ALREADY, AGAIN EITHER THE "A" OR "B" CAN NOT FILE ANOTHER SUIT ON THE SAME SUBJECT IN THE SAME COURT OR ANOTHER COURT. THEN IT IS CALLED AS RES-JUDICATA UNDER SEC.11.