Order VI Rule 17 CPC | Amendment Of Plaint Can't Be Permitted To Bypass Res-Judicata After Full Trial: Kerala High Court

The division bench comprising Justice Anil K Narendran and Justice G Girish, delivered the judgment in a miscellaneous first appeal.

The appellant, a mutawalli of a waqf mosque, had originally filed a suit seeking declaration and injunction over certain waqf properties. While that suit was pending, he instituted a separate suit seeking recovery of possession of the same properties. The second suit was dismissed after a full trial, with the Waqf Tribunal holding that a mutawalli was not competent to file a suit for recovery of possession and that the claim failed on merits.

Instead of challenging that dismissal in the appeal, the appellant sought to amend the plaint in the earlier suit, after completion of evidence, to add an identical prayer for recovery of possession. The Waqf Tribunal rejected the amendment, and subsequently, the present appeal was filed.

The Court was considering "whether an amendment of plaint can be permitted, after the completion of evidence, to incorporate a plea which would otherwise be barred by res judicata, if raised in a fresh suit".

The Court noted that the petitioner has no case that the verdict of the Tribunal has been challenged in an appeal. It further noted that the Tribunal dismissed the suit not on any technical grounds, but on merits after evaluating the evidence adduced by the parties in support of their respective contentions.

The Court observed that the net effect of granting amendment would result in the petitioner having an opportunity to reagitate the issue regarding the recovery of possession of the suit properties once again which would circumvent the bar of res judicata.

“Such a course of permitting the petitioner to do a thing indirectly which he could not do directly, is a procedure alien to the settled principles of law.” Court noted.

The Court has also examined the provisions relating to amendment of pleading, under Order VI Rule 17 of the Code of Civil Procedure, 1908. The Court observed that even though the provision enables amendment at any stage of the proceedings,the proviso restricts its applicability to a stage before the commencement of trial.

“A legal bar brought in the statute book to confer finality and conclusiveness of decisions as a matter of public policy in the interest of the community at large, and to protect individual interest from multiplicity of litigations, cannot be circumvented by an amendment with a hidden objective of rendering that provision nugatory.” Court observed

The Court further observed that the law is settled that the courts as a rule should decline to allow amendments, if a fresh suit on the amended claim would be barred by law on the date of application. It further added that the bar in allowing the amendment shall be factored in the exercise of discretion as to whether the amendment should be ordered.

The Court relied on H J Leach and Co. v Jardine Skinner and Co. [AIR 1957 SC 357] and other precedents to examine whether the amendment could be allowed in a fresh suit on the amended claim would be barred by limitation.

“It is of no doubt that the avowed objectives behind the concept of res judicata would be thrown to winds if a litigant is permitted to circumvent the above bar by resorting to the indirect way of setting forth the proscribed plea by way of amendment in a pending suit between the same parties, that too, at a stage when the evidence is already over.” Court noted.

The Court observed that the petitioner has submitted that the necessity to make an amendment in suit arose only when the earlier suit filed in 2022 was dismissed and hence it is an attempt to reagitate an issue before the same forum which had already rejected it on merits.

The Court thus held that the course adopted by the petitioner is against the objective of amendment which is intended to subserve the ultimate cause of justice.

The Court thus held that the order of the Waqf Tribunal does not suffer from any error or impropriety and dismissed the appeal.

Case Title: Sayed Hussain Hydrose Thangal v K J Paul and Ors

Case No: MFA (Waqf) 10/ 2025

Citation: 2026 LiveLaw (Ker) 26

Counsel for Appellant: K H Asif, C A Majeed. Molty Majeed, P B Unnikrishnan Nair, Sherin Biju

Counsel for Respondent: Michael M Wilson, R Ramadas, Reni James, C R Rekha