Fresh plaint in lieu of earlier plaint
Udit
(Querist) 25 February 2015
This query is : Resolved
In the case under rent control act for determination of standard rent I applied in the competent court but the court rejected my plea after full hearing and said that rent can not be increased against the order i applied to high court. The high court ordered the lower court to PROCEED AFRESH AND DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW AFTER TAKING SUFFICIENT EVIDENCE FROM BOTH THE PARTIES. So i applied in the court again with the high court order along with a new plaint in which the only difference was of the evidence and the time of rent was differ from that of earlier evidence. Second party did not raise any objection of any kind regarding fresh plaint during the case. And due to high court's order the case went against the other party. Now while he appealed in the high court, there they are taking this step against the judgement that the said judgement was decided on the basis of a new plaint and it comes under the doctrine of constructive res- judicata. So my question is that is it wrong to submit a new plaint with not much difference in the facts from the earlier plaint and that is when such plaint was submitted when the high court ordered to proceed afresh in the matter. Pls tell me submitting a fresh plaint was a right step or wrong, while there is not any difference in the facts of the case in both the plaints.
Udit
(Querist) 25 February 2015
Can the order be quashed by the high court due to above ground?
alexander
(Expert) 26 February 2015
1. What was the necessity of filing a fresh plaint. The same original petition could have been pursued along with the directions/decision of the High Court
thereon.Anyway perhaps you started AFRESH as directed by the High Court and the trial Court accepted the Fresh Plaint pertaining to the same case remanded by the High Court.
2. Although it is well known(Order VI Rule 2) that' PLEADINGS ARE TO STATE MATERIAL FACTS AND NOT EVIDENCE', you included 'some evidence' possibly for the following reasons"
(a) In view of O VI R2,the court is not to consider evidence and could ignore it.
(b) High Court had directed that fresh evidence be asked for
(c) it was considered only fair that the Defendant knew well in advance some of the important evidence which the Defendant would face.
3 RES JUDICATA would normally arise when an issue has been finally decided by the trial court and the appeal period too has expired.
3.AN APPEAL IS A CONTINUATION OF THE CASE thus there is no RES JUDICATA during the pendancy of the appeal.
4. AND THE DECISION OF THE TRIAL court has been REDUCED TO 'non est' BY THE high court. Thus the previous decision of the trial court and the subsequent plea of Constructive Res Judicata on the conclusion of the second trial disappear in the thin air.
5. The Defendant could have objected to your induction of new and perhaps different evidence and the change of dates through his WRITTEN STATEMENT and not after the proclamation of the adverse decision of the trial court.
6 Not knowing the issues framed and the evidence adduced by both the parties, it is difficult to suggest anything more.
ALEXANDER
nom de plume
Udit
(Querist) 26 February 2015
Thank you sir, I was thinking the same thing. Thanks for you opinion.
Udit
(Querist) 26 February 2015
Sir, I wanna ask one more thing, in the same case The District Magistrate ordered in his judgement to pay Rs. 8 crore as the arrears of rent and to pay Rs. 9 lakh per month from January, 2015. The defendant while appealed in the high court, asked for stay on the order of D.M. High court admitted the appeal but denied to grant stay and said if the half of the ordered amount is deposited and half of the rent since January, 2015 is deposited than only it will grant stay on the order, otherwise stay can not be granted. Could you please tell me that what step can i take for enforcement of the order. Can it be decreed and process of recovery could be initiated or what other remedy is available if the high court does not grant stay on the order and admits the appeal.
Dr J C Vashista
(Expert) 27 February 2015
File execution petition before the trail court, no stay has been granted by the High Court for its execution.
T. Kalaiselvan, Advocate
(Expert) 02 March 2015
You know each and every bit of the case and also the direction o which it is moving, whether in a right or wrong direction etc. If you have an answer for all your questions in that itself, there was no necessity for this second query.
Udit
(Querist) 04 March 2015
Mr. Alexander, i want to meet you personally. Could you please give me your address and phone number, I will be highly obliged to you.
Guest
(Expert) 04 March 2015
Well advised.
