IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4473 of 2008 Date of decision:26.05.2009 Narain ...Petitioner versus Tara ...Respondent CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Kul Bhushan Sharma, Advocate for the petitioner. Mr.Ram Pal Verma, Advocate for for the respondent. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The revision is against the order allowing the application for amendment in the plaint. The amendment was sought by the plaintiff to introduce the case that the defendant had put up the construction subsequent to the filing of the suit and he also sought for inclusion of prayer for mandatory injunction of the construction alleged to have been put up by the defendant. 2. The defendant who is the revision-petitioner, contends that earlier the plaintiff had obtained an ex parte decree and after it was set aside, the plaintiff had complained by moving an application under Order 39 Rule 2A CPC complaining of the alleged construction as Civil Revision No.4473 of 2008 -2- having been made subsequent to the institution of the suit in spite of the order of injunction and hence, he was liable appropriate orders for disobedience of the order of injunction. That application came to be disposed of on merits when the Court found that the plaintiff-petitioner who sought action for alleged disobedience of the order of injunction had not established that construction had been made in disobedience of the order of injunction in the month of December 2001. This order which was rendered on merits, according to the counsel for the revision- petitioner, constitutes constructive res judicata for urging the very same contention in suit. 3. The submission, in my view, is not tenable in law. An order which is passed at an interlocutory stage is invariably done on the availability of a prima facie case as regards the contention of the parties. It cannot be understood as foreclosing any plea by a party that a fact referred to in the interlocutory application was not properly decided. While the plea of constructive res judicata would bar the plaintiff from again seeking for a similar relief complaining of violation of order of injunction, it cannot bar the plaintiff from seeking an adjudication on the correctness of the averment that the construction had been made only in December 2001 as averred by him in the amended pleadings. By allowing a party to take up a plea of an alleged subsequent events, the Court does not render an adjudication in favour of the plaintiff. On amendment, the defendant shall always be entitled to join issues and contend that the construction was there even prior to the institution of the suit and that the cause of action alleged by the amended pleadings was Civil Revision No.4473 of 2008 -3- not true and still seek for the dismissal of the suit. The Court, while allowing the amendment, was merely taking the averment in the petition as a subsequent event and also permitted the plaintiff to seek for the relief of mandatory injunction, if his contention was true. 4. The order directing amendment is, therefore, perfectly justified and revision is dismissed. The defendant, however, shall have the liberty to file an additional written statement taking up all the defences which are open to him in so far as the amended pleadings and the amended relief are concerned. Subject only to this liberty, the Civil Revision is dismissed. (K.KANNAN) JUDGE 26.05.2009 sanjeev