KANHU GAUDA Vs. D KODANDI DORA

JUDGEMENT

(1.) This revision raises the question whether rejection of an application under Order 1, Rule 10, sub-rule (2) of the Code of Civil Procedure for addition of a party operates as res judicata if at a later stage of the suit an application is made under Order 6, Rule 17 of the Code to implead the said party.

(2.) The petitioner brought an action for declaration of title, confirmation of possession and the relief of permanent injunction. He alleged that his father purchased the property in dispute in 1963 by a registered sale deed from one D. Buchibabu Dora who was the brother of defendant No.1. In a partition, which took place around 1949, Defendant No.1 (Opposite party No.1) and his brothers, namely, D. Buchibabu Dora and D. Rammurty Dora, were allotted specific properties and the property in dispute was in possession and enjoyment of D.Buchibabu Dora. There was some mistake in the description of property. Registered document rectifying the mistake was obtained in 1975. When in a proceeding under Sec.145 of the Code of Criminal Procedure the opposite parties' (Defendants') possession was declared, he brought action for the relief stated above. On 2-4-1980, an application under Order 1, Rule 10 of the Code was filed for impletion of D. Buchibabu Dora on the ground that he was a necessary party to the action. The application was rejected on 10-5-1980 on the ground that he was not a necessary party to the suit. Thereafter, on 12-11-1980 an application was filed under Order 6, Rule 17 of the Code for impletion of the brothers of opposite party No.1 (Defendant No.1), namely, D. Buchibabu Dora and D. Rammurty Dora, as defendants. It was alleged that having regard to the pleas taken by the defendants, it was just and proper that the two brothers of opposite party No.1 (Defendant No.1) should also be impleaded. It was further averred that since the question of earlier partition and allotment of the suit property to the share of Buchibabu Dora was in controversy, his prayer for amendment should be allowed. Amendment of the reliefs by seeking recovery of possession and mesne profits from opposite parties 1 to 4 was also prayed for.

(3.) The opposite parties opposed the motion for amendment alleging that the amendment would alter the nature of the suit and would introduce a new case; besides, the move was belated and mala fide. The trial court being of the view that earlier order dated 14-5-1980 rejecting the petitioner's application for impletion of Buchibabu Dora under Order 1, Rule 10 of the Code stood as a bar, rejected the prayer. It, however, permitted amendment, of the reliefs.