Madan Lal vs Prescribed Authority/lst Addl. Civil Judge and Others

U.K. Rathi, J.—The respondent Nos. 2 and 3 moved an application Tor release under Section 21(1) (a) of U.P. Act XIII of 1972 against the petitioner for the release of the shop in dispute. The petitioner contested the release application and filed written statement denying the bonafide need of the respondent Nos. 2 and 3 for the shop in dispute.

During the pendency of the case, the petitioner moved an application paper No. 166Ka for amendment in the written statement. He also filed certain papers by application No. 169 Ga. The application No. 169Ga was allowed and the papers were admitted. However, the application for amendment 166Ka was rejected by order, dated 21 22000, Annexure 6 to the petition. Aggrieved by it, the present petition has been filed under Article 226 of Constitution of India.

I have heard Sri N.K. Srivasiava, learned counsel for the petitioner and Sri Aditya Narain, learned Counsel for the respondent Nos. 2 and 3 and perused the order.

The application for amendment was mainly rejected by the learned prescribed authority for the reason that previously an application No. 150Ga for rejection of application for release was moved on the same grounds mentioned in the application for amendment and the said application was rejected on 581999. That, therefore, the amendment cannot be in the application paper No. 150C, which was rejected on 581999.

In my opinion, the application for amendment was rejected on improper grounds. No doubt the release application was sought to be rejected by application No. 150C on the same ground, which are now being requested for being incorporated by the amendment. However, rejection of the application No. 150C does not mean that the amendment cannot be allowed. The application No. 150C was not maintainable and was not moved under any provision of law. The release application cannot be rejected on an application and it has to be decided on merits.

The learned Counsel for the respondent Nos. 2 and 3 have argued that the earlier order, dated 581999 rejecting the application No. 150C operates resjudicata at the subsequent stage of the Suit.

The learned Counsel for the respondent Nos. 2 and 3 in support of his arguments has relied on the decision in case of Y.B. Patil and others v. Y.L. Palil, AIR 1977 S.C. page 392. In this case, the Apex Court has laid down that the principle of resjudicata applies regarding the matter at the subsequent stage of same proceedings. The other case referred to is Jagannath Prasad v. District. Judge, 1987(13) ALR 39 (Sum.) : 1987(1) ARC page 89. In this case, an application under Section 23 of Provincial Small Causes Court was rejected. Subsequently, another application was moved, it was held that this is barred by principle of resjudicata.

The arguments of the learned Counsel for respondents Nos. 2 and 3 is not correct and the above decisions have no application in the present case. The reason is that the request made in the application No. 150C was for rejection of the release application and not for amendment. Therefore, i: cannot operate as resjudicata in the matter of amendment. That, therefore, it cannot operate as resjudicata in the matter of amendment in the written statement.

I have perused the proposed amendments. The amendment is being sought to plead new facts which can always be pleaded.

I am of the view that learned prescribed authority has erred in rejecting the application for amendment .166Ka.

Accordingly, the petition is allowed with the result that the application No. 166Ka for amendment is allowed. The learned prescribed authority will permit the petitioner to incorporate the amendment in the written statement and, thereafter, shall proceed with the case in accordance with law. Petition allowed.