CR No. 6537 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6537 of 2008 Decided on :27-11-2008 Samual ....Petitioner VERSUS Haryana State and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. J.S.Cooner, Advocate for the petitioner MAHESH GROVER, J This revision petition is directed against the order dated 21.11.2008 by which the prayer of the petitioner under Order 6 Rule 17 of the CPC has been declined. The petitioner had earlier moved a similar application under Order 6 Rule 17 CPC which was declined by the learned Trial Court both on merits as also on the ground that it is in conformity with the requirements of Order 6 Rule 17. Thereafter, the petitioner preferred a revision petition against the said order which was got dismissed as withdrawn. The petitioner has now invoked the jurisdiction of the learned Trial Court once again under Order 6 Rule 17 which has been declined by virtue of the impugned order. Learned counsel for the petitioner relied on a judgement of this Court titled as 'Jamni Dass versus Jugal Kishore' 2001 (2) PLR 831 to contend that second application was not barred and it can be moved at a belated stage. In Jamni Dass's case (supra) it was observed as under:- “Para 5:- After having learned counsel for the parties, this Court is of the considered opinion that impugned order is CR No. 6537 of 2008 2 liable to be set aside. Irrespective of the fact that earlier application under Order 6 Rule 17 CPC was dismissed by the trial Court, it does not debar and detract the plaintiffs to repeat the application under Order 6 Rule 17 CPC at the appellate stage. The order of the lower court does survive only up to the stage of the suit. The plaintiffs could repeat the application under Order 6 Rule 17 CPC when it was not even decided on merits by the trial Court as well as the first appellate court because the stage of making the application was after the arguments were concluded by the trial court earlier. Now, it has to be seen independently whether the proposed amendment is constructive and material in consistent with the case put up by the petitioner before the trial Court. I am of the opinion that the proposed amendment ought to have been allowed by the first appellate court and this application should not have been dismissed by relying upon the order of learned Trial Court or of the Revisional Court. Learned counsel for the respondents, however, relied upon a judgment of the Hon'ble Supreme court reported as Gurdev Singh and others v. Mehnga Ram and another AIR 1997 SC 3572 and submits that when the order of the appellate Court allowing additional evidence is challenged in the High Court in a revision such revision is not competent. This judgement is distinguishable on facts. Moreover, this court is of the opinion that allowing or disallowing an application under Order 41 Rule 27 CPC is a case decided within the meaning of Section 115 CPC and gives a cause of action to the aggrieved party to file revision before the High CR No. 6537 of 2008 3 Court.” After hearing learned counsel for the petitioner, I am of the considered opinion that the second application is totally mis-conceived. First application moved by the petitioner was declined on merits as well. In this view of the matter, the citation relied upon by the learned counsel for the petitioner is distinguishable as in that case probably the application was not decided on merits. In the considered opinion of this Court, second application under Order 6 Rule 17 seeking to incorporate the same amendment which has been declined earlier is not maintainable. Dismissed. November 27 , 2008 (Mahesh Grover) rekha Judge