Order VI Rule 17 CPC | Post-Evidence Plaint Amendment Cannot Be Used To Evade Res Judicata After Full Trial: Kerala High Court Dismisses Waqf MFA
Safiya Malik
The High Court of Kerala Division Bench of Justice Anil K. Narendran and Justice G. Girish, in a miscellaneous first appeal, dismissed the appeal and upheld a Waqf Tribunal order rejecting a post-evidence plaint amendment. The suit concerns Waqf property, where the plaintiff, as mutawalli, alleged wrongful occupation by the defendants under a claimed lease and sought declaration and injunction. After the trial concluded, the plaintiff sought to add a prayer for recovery of possession. The Bench found that the same relief had been adjudicated on merits in an earlier suit between the parties and held that Order VI Rule 17 of the Code of Civil Procedure cannot be used at that stage to introduce such a barred claim.
The appeal arose from an order of the Waqf Tribunal, Kozhikode, rejecting an application seeking amendment of a plaint after completion of evidence. The appellant, who had instituted the suit in the capacity of mutawalli of a mosque, originally sought declaratory and injunctive reliefs in respect of certain waqf properties. The suit, earlier decreed ex parte, was later restored for fresh trial.
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During the pendency of the restored suit, the appellant instituted a separate proceeding before the Waqf Tribunal seeking recovery of possession of the same properties. That suit was dismissed after full trial. Subsequently, the appellant filed an application in the pending suit seeking amendment of the plaint to include a prayer for recovery of possession.
The Waqf Tribunal rejected the amendment application on the ground that the trial had concluded, due diligence was not established, and the proposed amendment would alter the nature of the suit. The Tribunal also noted that the same relief had already been sought and rejected in an earlier proceeding. This rejection was challenged before the High Court.
The Bench framed the central issue by recording: “Can amendment of plaint 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?”
After examining the factual background, the Court noted that the separate suit for recovery of possession had been dismissed on merits and not on technical grounds. It recorded that “the Tribunal had considered the pleadings and evidence of both parties on merit and found that the petitioner is not entitled for the recovery of possession of the suit property.”
Referring to the findings of the Waqf Tribunal, the Court extracted and relied upon the observation that “the mutawalli is not empowered to file a suit for recovery of possession” and that “there is a special provision which incorporates the procedure for recovering waqf properties.” The Bench also noted that the Tribunal had found absence of evidence identifying the properties and lack of proof regarding any lease arrangement.
On the effect of the proposed amendment, the Court observed: “The net effect of granting amendment as prayed for by the petitioner would be giving an opportunity to the petitioner to reagitate the issue regarding the recovery of possession of the suit properties once more before the same forum by circumventing the bar of res judicata.”
The Court further stated that permitting such an amendment would amount to allowing a litigant “to do a thing indirectly which he could not do directly.” It recorded that the issue of recovery of possession was “directly and substantially in issue” in the earlier suit and had been decided on merits.
While discussing Order VI Rule 17 of the Code of Civil Procedure, the Bench observed that “the proviso restricts its applicability to a stage before the commencement of trial” and that the exception applies only when a party, “in spite of due diligence, could not have raised the matter before the commencement of trial.”
The Court rejected the appellant’s reliance on the dismissal of the earlier suit as a ground for amendment, observing that this contention itself showed an attempt “to indirectly make the Tribunal decide again an issue between the same parties which the Tribunal had already decided on merit.”
Stating the doctrine of res judicata, the Bench quoted earlier precedent explaining that “a cause of action that is brought before Court and results in a decision thereby loses its identity and validity as the cause of action merges in the judgment or order.” It concluded that allowing the amendment would defeat the finality of adjudication and expose the tribunal to the untenable position of sitting in appeal over its own earlier decision.
The Court held: “In the light of the settled principles of law discussed aforesaid, the petitioner cannot be permitted to have amendment of the plaint in W.O.S No.8/2023 as prayed for in I.A No.2/2025. Needless to say, the impugned order of the Waqf Tribunal does not suffer from any error or impropriety. In the result, the M.F.A is hereby dismissed.”
Advocates Representing the Parties
For the Petitioner: Shri K.H. Asif, Shri C.A. Majeed, Smt. Molty Majeed, Shri P.B. Unnikrishnan Nair, Smt. Sherin Biju
For the Respondents: Shri Michael M. Wilson, Shri R. Ramadas, Smt. Reni James, Smt. C.R. Rekha
Case Title: Sayed Hussain Hydrose Thangal v. K.J. Paul & Others
Case Number: MFA (Waqf) No.10 of 2025
Bench: Justice Anil K. Narendran, Justice G. Girish
