Upgrad LLM

new suit

practicing advocate

Learned Members,

My question:

Plaintiff had filed a suit eg., for declaration and injunction.  He sought for an amendement of  plaint, it was allowed, but  amendment was not carried out by the plaintiff.  Suit dismissed.  Plaintiff filed an appeal and in an appeal he sought permission to amend the plaint which was allowed and was not carried out.  Appeal dismissed.  Now plaintiff wants to file another suit with a facts, which were sought in the amendment. 
Can he file a suit?  In my opinion Res-Judicata will be applicable.  Kindly give me suggestion.

 
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Rajeev,

Res judicata comes into effect when any issue is "adjudicated" ie decided on merits. In your case, if the suit was dismissed for default, without any formal adjudication, in my opinoin, the priciples of res judicata will not apply. The Plaintiff may file a suit, and mention this fact of dismissal-(he dos'nt want to be accused of supression). Good Luck.

Jaideep Lele 


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self working

Sir as i am learner but i would also like to go with the answer give by the respcted sir Jaideep.

Jaideep sir as the answer give my u is correct than we ahve the case law which mention that res judicata is not applicable when ( if the suit was dismissed for default, without any formal adjudication).

 

Thanks have a nice day.


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civil practice

I think order 2,rule 2 would come in play.


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propra

res-judicate does not apply.

 

Why party went for appeal in the first place?


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practicing advocate

Sorry membeers, I forgot to tell that suit was dismissed on merits.  Any way thanks to all.

 
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propra

Dear Sir,

 

Kindly enlightem on the following O2 R2 subrule (3) .........

 

 

(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

 

 

Does that mean that ................  plaintif may seek 'leave to amend' the whole claim just to break it into portions?.... break up is not with intention to relinquish any part of the whole claim ...but defer the decision to raise claim for some portions till appropriate time.............There could be any unforeseen or future likely entitlements about which one may not raise the claim on it (by including it in the whole claim) right at that moment!!

 


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civil practice

Idea behind this provision is to stop multiplicity,but if your right is not ripen by the time you file the suit,this provision would not come in play,but if  u can include whole claim in one suit,and yet you are breaking it,this provision wants you to take permission of the court.


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