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vijaykumar vadapalli   20 March 2025

Change of plaint at the time of 1st appeal for mandatory/permanent/recovery of possession/reliefs

Namaste sirs, this is Vadapalli venkata vijayakumar already client of this corum. As you know my suit (wife) was dismissed by the JFCM court of Rajam, Srikakulam district. The suit is dismissed on lack of evidence for encroachment of property. We neither applied for Advocate commissioner petition nor produced the documentary evidences of encroachment. Venu sir is aware of my case. The decree was issued and  we have been on the job. Last date for  appeal is 2nd April sir.

My question is there were lot of latches in the plaint of lower court where the suit was dimissed. To rectify those defects, can i change the plaint in the 1st appeal if so, please quote relevant citations.

My town lawyers are stereo type. No one would go for new concept and  unaware the agagrived persons rights in the court of law . 

  • As the property was already encroached by 12 respondents and suit premises kept on changing with temporary alterations of temporary sheds. All these facts have to be produced as evidence. for that can i change the plaint accordingly sirs.
  • My counsel prepared an appeal and i am not satisfied as 50% of appeal is full of finding out errors of the lower court and blaming the Hon'ble judge sir. I think it is not  right as i studied so many decrees of the other state courts. 
  • All courts gave full liberty to aggrieved to put the matter for theie study sirs.
  • My counsel simply broke into various pieces of the plaint of lower court and prepared appeal. Moreover he objects me to draft the matter in paragraph (big) size. I am surprised that the content of grievance should be delivered as elaborately as possible in my opinion.

Finally i am seeking valuble advice from you all to appeal in 100% plea for justice, for act of kindness i shall ever be grateful to you sirs.

Vijayakumar 

 

Sirs, i will try to upload the appeal copy for your persual.

 

 



 6 Replies

T. Kalaiselvan, Advocate (Advocate)     20 March 2025

The plaint cannot be amended at appeal after the suit was contested and had been dismissed by trial court.

Alternately you can file a fresh suit with the plaint having proper details with documentary evidences and new cause of action.

1 Like

R.K Nanda (Advocate)     20 March 2025

Your case is complicated one and Your lawyer is also not conducting case properly therefore first change your lawyer and then proceed further. 

She Commie   20 March 2025

In Memorandum of Grounds of Appeal, we usually find fault with the judgment and decree of the lower court and we find fault with the lower court judge. That is quite normal. 

I remember in one of the Appeals, a completely unexpected ground, which we thought was completely meaningless, became important and it helped the appellant to win the appeal. We thought the appellant would lose, but he won on the basis of that ground, which was meaningless according to us. Law is quite complicated and we don't know which ground works in our favour. So, it is quite normal to challenge the lower court judgment and decree in each amd every way. 

However, if you are not comfortable with your lawyer, please change him. There is no point in continuing with a lawyer whom you do not trust. 

I do not know whether a fresh suit can be filed, because the judgment and decree of this suit will operate as res judicata. I think another suit on the same facts is barred by law. You cannot conceal that judgment and decree have already been passed. 

Additional evidence can be presented at the stage of appeal also under CPC Order 41 Rule 27.  However, there must be valid reasons. You cannot do it as a matter of right. Even an Advocate Commissioner can be appointed at the stage of appeal, though it is rare. Your opponent will oppose you and will not allow you to present it. 

Consult more than one good lawyer independently with all the papers and evidence. 

vijaykumar vadapalli   21 March 2025

Namaste sirs!t Thank you all for giving valuable suggestions. As Kalai sir said that it will be better to file fresh suit by covering all latches which were pointed out by the Hon'ble Court. I can put all evidences and other things in fresh suit  sir as suggested. Thank you Kalai saab.

As per she commie, i am not at all comfortable with the lawyer and earlier i told this corum the bar is full of womanisers, drunkers etc and old generation lawyers are no more. For this issue i started revising all civil law books and opposing the lawyers by showing the evidence of sectionS in CPC. My and my relatives cases are all encroached cases and all these are advocated by this person only.  The present lawyer is 60 years old and do not know what is "Apex Court" meaning. This present lawyer prepared appeal and forgot to include Mesne profits/ damages. The present bar is not interested to  prepare suit with minimum grounds even if  the plaintiff tries to explain to add the fact, they simply deny. Anyways sir, i have decided to file a file fresh suit and i myself prepare the suit with grounds what i experienced with evidences. Thank you sir 

Nanda saab, there is other go to change lawyer as this lawyer is 4th one for my all cases since 2012. Now i am 66 years old and graduated in engineering  and worked in Dubai for oil industries for 7 years. Those hardship has been siphoning out . God is there and you well wishers of the society are with me. I have lots of support from you  sirs.

Present JFCM post is lying vacant and waiting for new Judge sirs. Let it take its coarse of time sirs. God gave me patience.

I remain sir,

Hope i did not bore you sirs.

Yours sincerely

Vijayakumar

P.S: whenever i need a suggestion Club is there to guide me. Its all my luck sir

She Commie   21 March 2025

Section 11 of CPC deals with the principle of res judicata. Since you are studying various sections of CPC, please study section 11 of CPC also. 

A second suit on the same facts is barred by res judicata. 

The objective of this principle is to avoid relitigating a decided issue again and again. 

If you file a fresh suit, it is very likely that it would be dismissed. Your opponent can file a petition under Order 7 Rule 11 of CPC and get your suit dismissed in the beginning itself. 

You also cannot conceal the judgment and decree already passed. 

As far as I know, nobody has the option of filing a second suit on the same facts, after the first suit is decided. 

A second suit would be maintainable, only if the judge gave you liberty to file a second suit while dismissing the first suit. 

It all depends on the exact wording of judgment and decree already passed. 

I am also puzzled by "JFCM" in your query. Is your case on the civil side or criminal side? 

I suggest that you consult a couple of good lawyers, preferably High Court lawyers, and decide before filing a fresh suit. 

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