The Kerala High Court upheld the Waqf Tribunal’s refusal to allow amendment of a plaint after completion of evidence, holding that the proposed amendment sought to revive a relief already rejected on merits in an earlier suit. The Court ruled that such an amendment was barred by res judicata and failed the “due diligence” test under Order VI Rule 17 CPC, as it was an attempt to bypass appellate remedies and re-litigate concluded issues. 

Legal Issue

Whether an amendment of a plaint, sought after completion of evidence, can be permitted to introduce a plea that would otherwise be barred by the principle of res judicata if raised through a fresh suit, and whether such an amendment satisfies the “due diligence” requirement under Order VI Rule 17 CPC.

Brief Facts

The appellant, acting as mutawalli of Thykavu Mosque, instituted W.O.S No. 8/2023 before the Waqf Tribunal seeking declaratory reliefs and permanent prohibitory injunction in respect of certain Waqf properties.

During the pendency of this suit, the appellant independently filed W.O.S No. 45/2022, seeking recovery of possession of the very same properties. After a full-fledged trial, W.O.S No. 45/2022 was dismissed on merits on 24.02.2025. The Tribunal held that a mutawalli lacked authority to seek recovery of possession and further found absence of proof regarding identification of the property and existence of a lease arrangement.

Subsequently, at the stage of final hearing in W.O.S No. 8/2023—after closure of evidence—the appellant filed I.A No. 2/2025 seeking amendment of the plaint to incorporate a prayer for recovery of possession identical to the relief rejected in the earlier suit. The Waqf Tribunal dismissed the amendment application, leading to the present appeal.

Court’s Analysis and Reasoning

The High Court held that:

• The appellant’s assertion that W.O.S No. 45/2022 was dismissed on technical grounds was factually incorrect; the dismissal was clearly on merits.

• Permitting the proposed amendment would effectively allow the appellant to re-litigate an issue already conclusively decided, thereby defeating the doctrine of res judicata.

• Under Order VI Rule 17 CPC, amendments sought after commencement of trial require proof of due diligence, which the appellant failed to establish. The grounds now sought to be introduced were fully within the appellant’s knowledge when the earlier suit was prosecuted.

• The amendment application was a procedural shortcut intended to avoid challenging the adverse judgment in appeal and to indirectly secure relief that was directly declined earlier.

• Allowing such an amendment would place the Tribunal in the anomalous position of reviewing its own final judgment, undermining judicial discipline, finality, and certainty in adjudication.

Judgment

The High Court dismissed the appeal, affirming the Waqf Tribunal’s rejection of the amendment application. It held that amendments designed to circumvent statutory bars or revive concluded issues do not advance the cause of justice and cannot be permitted at a belated stage.

Significance

The judgment reinforces that procedural amendments cannot be used to bypass res judicata or substitute appellate remedies. It affirms the strict application of the “due diligence” test under Order VI Rule 17 CPC and underscores the importance of finality in judicial determinations, particularly in Waqf litigation.

Access the official judgement/order here

Case Title

Sayed Hussain Hydrose Thangal v. K.J. Paul & Ors.

Citation

MFA (Waqf) No. 10 of 2025

Court

High Court of Kerala at Ernakulam

Bench

Justice Anil K. Narendran

Justice G. Girish

Date of Judgment

19 December 2025