IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2142 of 2006 KULDEEP YADAV @ KULDEEP PRASAD son of late Mangal Gope, resident of Illahibagh, P.S. Phulwari Sharif(Parsa Bazar), District Patna, at present resent of Kumhrar, P.O. Agamkuan, P.S. Sultanganj, District Patna… ….. … ….. Principal Defendant/Petitioner Versus 1.RAM CHARITARA YADAV @ RAM CHARITAR GOPE @ CHAITA GOPE son of lat e Ram Prasad Gope, resident of village Kumhrar, Walis Khan Ka Talab, P.O. Agamkuan, P.S. Sultanganj, District Patna… … Plaintiff/Opposite Party Ist Set 2.Chandu Gope son of late Babu Lal Gope, 3. Sanjay Gope, 4. Raju Gope both sons of Bishwanath Gope, 5. Shobhi Gope son of Bishwanath Gope, 6. Kaili Devi daughter of Bishwanath Gope, 7. Bablu, 8.Rakesh, 9. Dhiraj Kumar, 10.Rinku, all sons of Shiv Nath Gope, all residents of village Kumhrar, Walis Khan Ka Talab, P.O. Agamkuan, P.S. Sultanganj, District Patna, 11.Shiv Nath Gope son of late Kashi Gope, resident of mohalla Khajekalan, P.O. and P.S. Khajekalan, District Patna… … Proforma Defendants/Opposite Party 2nd Set.. …OPPOSITE PARTIES For the Petitioner: Mr. Sukumar Sinha, Sr. Advocate, Mr. Abinash Kumar, Advocate For O.P. No. 1 : Mr. Manoj Kumar No. 1, Advocate ----------- 5 01.09.2009 Heard Mr. Sukumar Sinha, learned counsel for the petitioner, and Mr. Manoj Kumar No. 1, learned counsel for the opposite party no. 1. 2 The defendant-petitioner is aggrieved by the order dated 14.11.2006 passed by the Sub-Judge II, Patna City, in Title Suit No. 68 of 1999, whereby he has allowed certain amendments in the plaint. The plaintiff-opposite party no. 1 filed Title Suit No. 68/99 for declaration of title and confirmation of possession and if the plaintiff is dispossessed from the land during the pendency of the suit then also for recovery of possession of such disputed property. Relief was also sought for grant of injunction restraining the defendant from interfering into the transfer or encumbering the suit property during the pendency of the suit. Learned counsel for the petitioner submitted that under the garb of amendment in the plaint by addition of statement, as contained in paragraph 3 of annexure 1(which is the petition filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure), the plaintiff wanted to dislodge the defendant-petitioner from the advantage, which has been gained by him by the finding of the appellate court that in place of the plaintiff the petitioner was in possession of the land in dispute. Earlier, the plaintiff filed a petition under Order 3 XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) for restraining the defendant-petitioner from interfering into the possession and changing physical feature of the suit land during the pendency of the suit. The aforesaid application was dismissed by the trial court and an appeal bearing Miscellaneous Appeal No. 58 of 2001 was preferred, which was also dismissed by an order dated 12.02.2002. Learned counsel for the petitioner had filed certified copy of the order dated 12.02.2002 aforesaid and drew attention of this Court that upon hearing the rival submissions the Additional District Judge X, Patna, who was hearing the aforesaid Miscellaneous Appeal, had come to the conclusion that the plaintiff failed to make out the three basic ingredients for grant of injunction, i.e., prima facie case, balance of convenience and irreparable loss, on account of the fact that the plaintiff was not found in possession, rather the defendant- petitioner was found to be in possession by the appellate court aforesaid. Thus, it had been submitted that the proposed amendment by the plaintiff for incorporating the paragraph 3, as contained in annexure 1, was only with a view and intention to take away the advantage, which had been gained by the 4 defendant. It had also been submitted that against the finding of the appellate court regarding the possession, no amendment could have been allowed, which was contrary to the aforesaid finding. Learned counsel appearing for opposite party no. 1 submitted that it would be apparent from the averments made in the petition filed under Order VI Rule 17 of the Code that the plaintiff wanted to incorporate in the plaint the events, which were subsequent to the passing of the appellate order. Further submission was that the appeal was filed against the order refusing interim/temporary injunction, which was an interlocutory order and appeal thereof was decided only on that issue. According to opposite party no. 1, it had been held on several occasions by different courts including the Apex Court that the findings recorded at the time of disposal of the interlocutory matters never operate as res judicata in further proceeding, as the matter would have to be decided by the trial court after framing issues and recording evidence thereon. That being the situation, there was no question of taking steps for annulling or nullifying the findings recorded by the appellate court, as the same would never operate as res judicata. Thus, that would not bind the parties. In support of 5 his submission, learned counsel for opposite party no. 1 had placed reliance upon a decision of the Apex Court rendered in Arjun Singh v. Mohindra Kumar and others, reported in AIR 1964 Supreme Court, 993. In the aforesaid case, the Supreme Court had held that the interlocutory orders including the orders passed in injunction matters or receivership matters are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. Such decisions taken in that view of the matter do not decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same very relief, though normally on proof of new facts or new situation, which subsequently emerged. Thus, it had been held that the principle of res judicata would not apply to the findings, on which those orders are based. Further reliance had been placed by learned counsel for opposite party no. 1 upon a decision of the Supreme Court rendered in Jaikishan Jagwani and others v. Britomatics Enterprises Pvt. Ltd. And others, reported in 1987(Supplementary) Supreme Court Cases, 72. 6 The Apex Court has held in the aforesaid decision that the observations made by the court are merely tentative observations made for the limited purposes of the interlocutory proceedings. When the question of deciding the matter on the merit ultimately arises, the matter would have to be disposed of with an open mind, uninfluenced or uninhibited by any observation made in course of these orders. Learned counsel had also placed reliance upon a decision of this Court rendered in Raghupati Sinha v. Area Incharge, Industries Area Development Authority Dehri-on-Sone and others, reported in 1993(1) B.L.J., 583 to show that the finding recorded at the time of grant of refusal of injunction would not operate as res judicata at the trial. Thus, the submission on behalf of the opposite party aforesaid was that since the finding recorded has no bearing upon the subsequent events on the trial court, there would be no question of taking steps by the plaintiff to annul or nullify the same and in fact, further amendment in the plaint could not have been disallowed on the ground of aforesaid findings recorded in an interlocutory matter. The opposite party no. 1 has filed a copy of the plaint after serving the same upon the petitioner. By the 7 amendment concerned, the plaintiff wanted to add paragraph no. 3 thereof after paragraph 9 of the plaint. It has been incorporated in paragraph 9 of the plaint that the plaintiff has absolute title and possession over the land in dispute and the defendants have none. In paragraph 1 of annexure 1 (the petition under Order VI Rule 17 of the Code) the plaintiff has clearly stated that during the pendency of the suit certain developments had occurred, which was required to be brought on record by amendment. By the amendment proposed the plaintiff wanted to incorporate the statement with regard to certain construction upon plot no. 145 and the fact that certain ceremony was held thereupon wherein certain persons had participated. It would be manifest from paragraph 4 that such constructions were raised about one year back during the pendency of the suit, therefore, the same could not be incorporated in the plaint at the time of filing of the suit. The court below upon hearing the rival submissions had allowed the amendment in the interest of justice after imposing cost of Rs. 300/-(three hundred). In the earlier order passed by the Additional District Judge X, Patna, disposing of Miscellaneous Appeal No. 58 of 2001 it had been held that the name of the 8 defendant-petitioner stands recorded in the record of right, which suggested his possession upon the land in question. This matter is in issue in the title suit concerned and is to be decided in the title suit after taking evidence. The aforesaid order was passed by the appellate court for the purpose of disposing of the interlocutory matter on the basis of material available on record but without taking any evidence thereupon and as has been held by the Apex Court in Arjun Singh(supra) the same could not be treated to be decided as an issue in the trial and would also not be binding upon the further proceedings in the trial. The trial court has to decide the issues in the trial irrespective of the fact as to what had been held by the courts previously in such interlocutory matters. The plaintiff has clearly stated in paragraph 9 of his plaint that he has got possession over the land in question and the defendants are not. Such pleading has to be proved by him after leading evidence and the trial court has to decide the issue. The question, thus, would be as to whether the finding recorded by the appellate court in interlocutory matter with regard to possession would nullify the pleadings of the 9 plaintiff and for that reason whether the plaintiff would not be allowed to lead evidence in support of the statement made in paragraph 9 of the plaint that he was in possession of the land concerned? In view of the directions and the decisions of the Apex Court aforesaid, specially in Arjun Singh(supra), the answer has to be in negative. That being the position, the plaintiff cannot be restrained from incorporating the subsequent events also in continuance of the earlier statement made in the plaint. However, the defendant-petitioner would also be at liberty to counter it by filing additional written statement or seeking amendment in their written statement, if they so desire. Thus, in my opinion, the court-below has not committed any jurisdictional error in passing the impugned order dated 14.11.2006. As a result, this civil revision is dismissed. SC ( Dr. Ravi Ranjan, J.)