GANESH PRASAD versus RAJESHWAR PRASAD AND ORS. on 14 March 2023

[2023] 6 S.C.R. 893

GANESH PRASAD

v.

RAJESHWAR PRASAD AND ORS.

(Civil Appeal No. 1699 of 2023)

MARCH 14, 2023

[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]

Code of Civil Procedure, 1908 – Or. VI, R.17 – Or. IX, R.8,9– Respondent-plaintiff instituted a suit against the appellant-defendant for a declaration that respondents are the lawful ownersof the suit property and decree of eviction on the ground of non-payment of rent and creation of sub-tenancy – The appellant-defendant filed a written statement stating that the father of therespondent-plaintiff was mortgagor of the suit property whoexecuted a mortgage deed in favour of father of appellant-defendant (mortgagee) and that is how his father was put inpossession of the suit property and suit should fail as mortgagewas not redeemed – Later on, the suit came to be dismissed for non-prosecution – Thereafter, respondents filed another suit forredemption of mortgage and possession of suit property – Therespondent made an application for amendment of pleadings – CivilJudge rejected the aforesaid application – Respondent challengedthe above order by filing revision application before the DistrictCourt, which in turn allowed the respondent to amend the plaint –Appellant challenged the said order before the High Court – HighCourt declined to interfere with the order – Appellant contendedbefore the Supreme Court that suit is barred by provisions of Or. IX,R. 9, as the earlier suit was dismissed for default and the cause ofaction is same in both the suits – On appeal, held: If the pleasintroduced by plaintiff by way of an amendment is also the plea,which the defendant has set up in his written statement and such aplea of the plaintiff is an alternative plea, even though it isinconsistent with the original plea, since there is no prejudice causedto the defendant, the Court is not precluded from allowing theamendment – In the instant case, the case of plaintiffs as put up inalternative is that the defendant is in possession of the suit propertyas a mortgagee and they are ready to redeem the mortgage by makingthe necessary payment of the mortgaged amount and take back the

A

B

CD

EF

GH

Apossession – It is settled that if the evidence to support the twoclaims is different than the causes of action are also different – Theinstant suit was not filed on same cause of action – Hence, thecontention raised on basis of the provisions of Or.IX, R.9 of theCPC has no merits – Transfer of Property Act – ss. 60 and 83.

BDismissing the appeal, the Court

HELD: 1. Plaintiffs and Defendant are entitled to amendthe plaint, written statement or file an additional writtenstatement. It is, however, subject to an exception that by theproposed amendment, an opposite party should not be subject toCinjustice and that any admission made in favour of the other partyis not but wrong. All amendments of the pleadings should beallowed liberally which are necessary for determination of thereal controversies in the suit provided that the proposedamendment does not alter or substitute a new cause of action onthe basis of which the original lis was raised or defence taken.DInconsistent and contradictory allegations in negation to theadmitted position of facts or mutually destructive allegations offacts should not be allowed to be incorporated by means ofamendment to the pleadings. [Paras 37, 38][918-E-F]

2. If the pleas sought to be introduced by plaintiff by way ofEan amendment is also the plea, which the defendant has set up inhis written statement and such a plea of the plaintiff is analternative plea, even though it is inconsistent with the originalplea, since there is no prejudice caused to the defendant, theCourt is not precluded from allowing the amendment. [ParaF47][922-A-B]

3. Order IX Rule 9 bars fresh suit in respect of the samecause of action in case the earlier suit was dismissed as indicatedin Order IX Rule 8 of the CPC. The term “same cause of action”assumes significance in as much as the bar under Order IX RuleG8 of the CPC applies to a later suit only in respect of the verysame cause of action. In case the cause of action in the later suitwas altogether different, which has nothing to do with the causeof action in the earlier suit, the statutory bar has no application tosuch later suits. It was only with a view to curb the tendency of filing multiple suits, on the basis of the very same cause of action,successively even after the dismissal of the earlier suit that sucha provision has been introduced. It was not the intention of theLegislature to bar the subsequent suits between the parties andthe same was evident by the qualifying words, “same cause ofaction”. Therefore, everything depends upon the cause of actionand in case the subsequent cause of action arose from a totallydifferent bunch of facts, such suit cannot be axed by taking shelterto the provision of Order IX Rule 9 of CPC. [Para 52][923-C-E]

4. Order IX Rule 9 of the CPC provides that when the suitis wholly or partially dismissed under Rule 8 (dismissed fordefault) the Plaintiffs shall be precluded from bringing in a freshsuit, in respect of the same cause of action. The present suit i.e.,Suit No. 154 of 2009 filed in the Court of Civil Judge (J.D.)Eastern, District Ballia is not filed on the same cause of action.In the present suit, the case of the Plaintiffs as put up in thealternative is that the Defendant is in possession of the suitproperty as a mortgagee and they are ready to redeem themortgage by making the necessary payment of the mortgagedamount and take back the possession. Whether the relief prayedfor is time barred or not is for the trial court to decide on thebasis of the evidence that the parties may lead. As observed bythe Privy Council in Mohammad Khalil Khan if the evidence tosupport the two claims is different than the causes of action arealso different. Hence, the contention raised on the basis of theprovisions of Order IX Rule 9 of the CPC has no merits. [Para60][927-B-D]

5. The matter may also be looked at from a different angle.Assuming for the moment that in the first suit also the plaintiffshad prayed for a relief, seeking redemption of mortgage as prayedfor in the present suit. Even in such circumstances, whether withboth the reliefs identical in the two suits and the cause of actionalso the same, the provisions of Order IX Rule 9 of the CPCwould operate as a bar for the maintainability of the present suit.The right to redeem, is a right conferred upon the mortgagor byan enactment, of which he can only be deprived by means and inmanner indicated for that purpose and strictly complied with. If AB

C

D

E

F

G

H

Athe right of redemption is not extinguished, the provision likeOrder IX Rule 9 of the CPC will not debar the mortgagor fromfiling a second suit because as in a partition suit, the cause ofaction in a redemption suit is a recurring one. The cause of actionin each successive action, until the right of redemption isextinguished or a suit for redemption is time barred, is a differentBone. [Paras 61, 62][927-E-F; 928-F]

Firm Sriniwas Ram Kumar v. Mahabir Prasad andOthers AIR 1951 SC 177 : [1951] SCR 277;G. Nagamma and Another v. Siromanamma and Another(1996) 2 SCC 25 : [1995] 5 Suppl. SCR 701; PrafulCManohar Rele v. Krishnabai Narayan Ghosalkar andOthers (2014) 11 SCC 316 : [2014] 1 SCR 44; State ofMadhya Pradesh v. Union of India and Another (2011)12 SCC 268 : [2011] 12 SCR 140; Life InsuranceCorporation of India v. Sanjeev Builders Private LimitedDand Another Civil Appeal No. 5909 of 2022 (decidedby the Supreme Court of India) – relied on.

D

Revajeetu Builders and Developers v. Narayanaswamy& Sons and Others (2009) 10 SCC 84 : [2009] 15 SCR103; North Eastern Railway Administration, Gorakhpurv. Bhagwan Das (2008) 8 SCC 511 : [2008] 6 SCR416; P. A. Jayalakshmi v. H. Saradha and Others (2009)14 SCC 525 : [2009] 11 SCR 131; B. K. NarayanaPillai v. Parameswaran Pillai and Another (2000) 1 SCC712 : [1999] 5 Suppl. SCR 271; A. K. Gupta and SonsLtd. v. Damodar Valley Corporation AIR 1967 SC 96 :[1966] SCR 796; Usha Balashaheb Swami and Othersv. Kiran Appaso Swami and Others (2007) 5 SCC 602: [2007] 5 SCR 306; M/s. Ganesh Trading Co. v. MojiRam (1978) 2 SCC 91 : [1978] 2 SCR 614; GayaMunicipality v. Ram Prasad Bhatt and Anr. in CivilAppeal No. 29 of 1965 (decided by the Supreme Courtof India) – referred to.

E

F

G

Deep Narain Singh v. Minnie Dietert and Anr. ILR(1904) 31 Cal 274; Sardar Balbir Singh v. Atma RamSrivastava AIR 1977 ALL 211 (FB); Suraj RattanThirani and Others v. Azamabad Tea Co. Ltd. and Others H

AIR 1965 SC 295 : [1964] SCR 192; Shridhar SadbaPowar v. Ganu Mahadu Kavade and Others ILR (1928)52 Bom 111; Ramachandra Kolaji Patil v. HanmanthaILR (1920) 44 Bom 28 939; Vithal Rajaram Sutar andanother v. Ramchandra Pandu Jadhav and Others AIR1948 Bom – referred to.

Bhaiya Raghunath Singh and others v. MusammatHansraj Kunwar and Others (1933-34) 61 IA 362, 226(PC); Thakur Shankar Baksh v. Dya Shankar andOthers (1887) LR 15 IA 66; Mohammad Khalil Khanand Others v. Mahbub Ali Mian and Others AIR 1949PC 78 – referred to.

Jay Cook v. Henry S. Gill (1873) LR 8 CP 107 –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1699of 2023.

From the Judgment and Order dated 04.07.2018 of the High Courtof Judicature at Allahabad in MUA No. 1346 of 2015.

C

D

E

F

G

AAniruddha Joshi, Rajeev Maheshwaranand Roy, P. Srinivasan,Advs. for the Appellant.

Tejasvi Kumar, Syed Sarfaraz Karim, Ms. Renu Bhandari, AmbarQamaruddin, Advs. for the Repondents.

The Judgment of the Court was delivered byB

J. B. PARDIWALA, J.

1. Leave granted.

2. For the sake of convenience, the appellant herein shall bereferred to as, ‘the Original Defendant or Defendant’ and the respondentsCherein shall be referred to as, ‘the Original Plaintiffs or Plaintiffs’.

3. This appeal is at the instance of the Original Defendant of SuitNo. 154 of 2009 instituted by the Plaintiffs in the Court of Civil Judge(J.D.), Eastern, District Ballia for possession of the suit property uponredemption of mortgage and is directed against the order passed by theDHigh Court of Judicature at Allahabad dated 04.07.2018 in the CivilMiscellaneous W.P. 1346 of 2015, thereby affirming the order passed bythe Additional District Judge dated 25.02.2015, permitting the Plaintiffsto amend the plaint under the provisions of Order VI Rule 17 of theCode of Civil Procedure, 1908 (for short, ‘the CPC’).

EFACTUAL MATRIX

EFACTUAL MATRIX

4. The subject matter of the civil suit is a property in the form ofa Shop in Block No. 2-5, A. No. 25, 26, 27, 28, 29 situated at Chowk,City Ballia, Pargana and District Ballia. The Plaintiffs claim to be thelawful owners of the suit property. It is the case of the Defendant thatFthe father of the Plaintiffs had executed a mortgage deed in favour ofthe father of the Defendant in respect of 1/3[rd] portion of the suit propertydescribed above and was put in possession of the shop. Thus, accordingto the Defendant, the father of the Plaintiffs was the mortgagor and hisfather was the mortgagee. The said registered mortgage deed is said tohave been executed on 12.02.1957.

G

5. From 1957 till 2005, the mortgagee continued to remain inpossession of the suit property as neither the mortgage money was paidnor the mortgage was redeemed and upon lapse of 30 years’ time period,the mortgagor’s right in the mortgaged property stood extinguished interms of Article 61A of the Schedule to the Limitation Act, 1963 (for H

short, ‘Act, 1963’). Sometime in the year 2005, the father of theDefendant i.e., the mortgagee, namely, Shree Gulab Chand died.

6. On 15.03.2007, the Plaintiffs instituted, the Small Cause SuitNo. 3 of 2007 against the Appellant Defendant herein and four others inthe Court of Small Causes Judge (Senior Division) for a declaration thatthe Plaintiffs are the lawful owners of the suit property i.e., the shop andthe same had been let out to the father of the Appellant Defendantherein and after the demise of the father of the Defendant, he stoppedpaying the rent to the Plaintiffs and illegally inducted defendant Nos. 2to 5 resply as sub- tenants in the shop in question. Thus, the Plaintiffsprayed for a decree of possession of the shop.

7. The following reliefs were prayed for in the Small Cause SuitNo. 3 of 2007 instituted by the Plaintiffs:

“A. Decree for eviction from the said shop as given in detailbelow boundary in favour of Plaintiffs against the Defendantsmay be passed and if they do not vacate within period orderedby the Court then it may be vacated through Court andpossession thereof may be given to us the Plaintiffs.

B. Decree for payment of 4500/- Rupees as given in detailbelow against Defendants and in favour of Plaintiffs may bepassed.

C. That 500/- Rupees damages decree during pendency ofsuit may be passed against the Defendants and in favour ofthe Plaintiffs.

D. Costs of the suit may be directed to be paid by theDefendants to us the Plaintiffs. Apart from these reliefs ifPlaintiffs are entitled to any other relief in the Court’s opinionthat may also be decreased in favour of the Plaintiffs againstthe Defendants.”

8. In the aforesaid Suit No. 3 of 2007, the Appellant Defendantfiled his written statement denying the entire case put up by the Plaintiffsand further stating that the father of the Plaintiffs had executed a mortgagedeed dated 12.02.1957 in respect of the suit property and i.e., how thefather of the Defendant was put into possession of the suit property.Neither the father of the Plaintiffs nor his legal heirs at any point of timeredeemed the mortgage.

A

B

C

D

E

F

G

H

A9. The cause of action pleaded in the plaint of the Small CauseSuit No. 3 of 2007 reads thus:- “That the cause of action arose on date 13-11-2006 whenregistered notice was sent and on date 15-11-2006 when noticewas served and on date 31-12- 2006 when inspite of serviceBof notice shop was not vacated nor rent arrear rent was paidand comes within the jurisdiction of the Court.”

10. It appears from the materials on record that the Small CauseSuit No. 3 of 2007 referred to above came to be dismissed for non-prosecution vide order dated 20.10.2010. The order dismissing the SmallCCause Case No. 3 of 2007 reads thus:- “20-10-10- Called out. Record presented. Plaintiff absent. No applicationfor opportunity has been given. In the Plaintiff’s absence thesuit is dismissed.”D

11. After the Small Cause Case No. 3 of 2007 came to be dismissedas aforesaid, the Plaintiffs preferred another suit (i.e. the present suit) inthe Court of the Civil Judge (J.D.) Eastern, District Ballia under Section83 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’), whichcame to be numbered as Suit No. 154 of 2009.

E

12. In the said Suit No. 154 of 2009, the cause of action pleadedby the Plaintiffs reads thus:

“That the cause of action arose on date 03-09-2008 on gettingknowledge of the mortgage deed and on date 31/3/09 onrefusal to take amount of mortgage deed and comes withinFCity Ballia, Paragana and District Ballia.”

13. The reliefs prayed for in the Suit No. 154 of 2009 read 2009as under:- “A. By the Court notice may be given to the Defendant toGtake mortgage deed amount 700/- Rupees other expenses5100/- Rupees total 58,00/- Rupees within the periodprescribed and give possession of the below mentioned roomto us the Plaintiffs.

B. Cost of litigation may be awarded to us the Plaintiffsagainst the Defendant.

H

C. Apart from this any alternative relief or other relief thatthe Plaintiffs are entitled to in the opinion of the Court mayalso be decreed in favour of the Plaintiffs and against theDefendants.”

14. In the Suit No. 154 of 2009, the Defendant filed his writtenstatement inter alia stating as under:

“4. That Para-4 of plaint is false and baseless. Father of thePlaintiffs had himself executed registered mortgage deeddated 12-02-57 in favour of father of the Defendants. In suchcircumstances there was no need to give them knowledge aboutthe registered mortgage deed. The Defendant’s father orgrandfather were never tenant of the father or grandfatherof the Plaintiffs. The Plaintiffs themselves had full knowledgeabout this fact that the father of the Plaintiffs had executedmortgage deed dated 12-02-57 in favour of father of theDefendant. No rent was ever paid by the Defendant’s fatheror the Defendant to the Plaintiffs.

Xxx xxx xxx

6. That Para-6 of the plaint is vague and indefinite. Plaintiffshave deliberately not given particulars of the case. It is truethat according to correct facts I the Defendant filed my truewritten statement in Small Cause Suit No. 3/Year 2007 filedby the Plaintiffs in the Court of Judge Small Causes CivilJudge (S.D.) Ballia. This case was dismissed on date20.10.2010.

7. That Para-7 of the plaint is false and baseless, not admitted.Plaintiffs had the knowledge about the mortgage deed fromthe beginning. The mortgage money was never returned bythe father of the Plaintiffs Original mortgage deed is till todayin the custody of I the Defendant. Father of the or I theDefendant have never been the tenant of the Plaintiffs ortheir father.

Xxx xxx xxxAdditional Statement

Xxx xxx xxx

A

B

C

D

E

F

G

H

A2. That factually as mentioned above Plaintiffs’ father hadexecuted registered possessory mortgage deed on date12.05.57 time limit for redemption whereof 30 years was till12-02-87. Father of the Plaintiffs was a habitual litigant. Hewillingly did not redeem the mortgage within the time limit.Death of the father of the Plaintiff also happened 6 yearsBafter the end of this time period. Thus father of the Defendantbecame owner and in possession of the room mentioned belowon the basis of adverse possession. Suit is barred by limitation.

A

Xxx xxx xxx

C4. That the suit of the Plaintiff is not legally maintainable.

A

Xxx xxx xxx

C4. That the suit of the Plaintiff is not legally maintainable.

5. That the suit is barred by issue estopped and acquiescence.

6. That the Plaintiffs filed Small Cause Suit No.3/year 2007Rajeshwar etc. versus Dr. Ganesh Prasad etc. which wasdismissed on date 20-10- 2010. Thus this suit was finallyDdecided against the Plaintiffs and in favour of me theDefendant. Present suit is barred on this ground also by res-judicata.”

15. It further appears from the materials on record that in the SuitNo. 154 of 2009, the Plaintiffs filed an application seeking to amend theEplaint under Order VI Rule 17 of the CPC. The amendment prayed for,reads thus:- “1. That in the title of the case after the name and address ofDefendant No. 1 where the word “Defendant” has beenwritten, after that the words “First Party” may be added andFbelow the name and address of Defendant No. 1 names andaddresses of the following persons may be added asDefendant Nos. 2 to 5.

2. Rajeev Kumar age about 35 years

Sons of late3. Munna age about 33 yearsOm Prakash G

4. Golu age about 23 years

5. Shyam Devi age about 57 years wife of late Om PrakashR/o Joplinganj, City Ballia, Paragana and District Ballia.

…. Defendants Second Party

H

GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.[J. B. PARDIWALA, J.]

2. That in the plaint line above Para-1 may be cut and in itsplace the following words may be written- “The aforesaid Plaintiffs submit as follows”

3. That in the plaint last line of Para 1 may be cut.

4. That in the plaint in the last line of Para-2 the word “effort”is written which may be cut and in its place word “throughout”may be written.

5. That in the plaint in second line of Para-4 the words writtenafter the word “following” may be curt and in its place thefollowing words may be added- “In respect of any portion of the described room disputedtenancy the possessory mortgage registered dated 12-02-57was written and executed, rather true fact is that DefendantNo. 1’s grandfather Laxman Prasad remained in capacity oftenant in the disputed room from the year 1953 at 23/- monthlyrent, subsequently Defendant No. 1’s father Gulab Chandremained as tenant in the disputed room throughout his lifetill the year 2005 and after death of Defendant No. 1’s fatherDefendant No. 1 is continued as tenant, and he lived and therent increased from time to time and it was paid, and duringthe life time of Defendant No. 1’s father Gulab Chand rent ofthe disputed room became 300/- Rupees and rent was paidfrom time to time by late Laxman Prasad and Gulab Chandand father of Plaintiffs and the Plaintiffs against receipt, andin this manner till 31-03- 06, the rent had been paid as advanceamount by Defendant No. 1’s father whereas he died in 2005.”

6. That in the plaint after amended Para-4 as Para 4(a) is asfollows:

May be added as follows

“4(a) That in the portion of Plaintiffs’ father in the house outof the tenants some tenants had filed two cases Case No. 492/87 Rajaram etc. versus Harihar etc. and Case No. 493/87Ram Narain etc. versus Harihar etc. in the Court of MunsifEastern Ballia for permanent injunction mandatory andprohibitory which was disposed of a settled in the said CaseNo. 493/87 Ram. Narayan ji versus Harihar etc. grandfatherof Def. No. 1 Late Laxman Prasad was party to the case as A

BCDEFG

H

A

B

C

D

E

F

G

H

Plaintiff No. 3 and he had filed suit claiming being in thedisputed room from the year 1953 on 25 Rupees monthly rentand the said case was disposed of through settlementdocument No. 58 Ka1, settlement document No. 58 Ka1 wastreated as part of decree. In this manner it is apparent thatgrandfather of Defendant No. 1 throughout his life nevershowed himself to be in the disputed tenanted room asmortgagee on the basis of mortgage deed.

7. That in the plaint after Para-5 one para as Para-5(a) belowwritten may be added as follows:-

“Para 5(a)- That against of Def. No. 1 from 01.04.06 rentremained in arrears and Def. No. 1 inducted DefendantsSecond Party in the disputed tenanted room and himselfopened clinic with the name “Shivam Hospital” in front ofGate of Tehsil School Ballia and started practising as doctor.Then legal notice was given for arrears of rent and on thebasis of sub- letting of the disputed room to sub-tenants for vacating the disputed shop and for arrears of rent anddamages and subsequently after service of notice Small CauseSuit No. 3/2007 was filed, in the Court of Judge Small CauseCivil Judge (S.D.) Ballia Rajeshwar etc. versus Dr. GaneshPrasad on date 15-03-07 which was dismissed withoutexamination after filing of the above case. By dismissal ofthe suit Def. No. 1 does not get any legal right nor can he getthe above suit dismissed, the above suit is not barred byprinciples of res judicata by order of dismissal of the saidsuit without examination.

8. That in the plaint in second line of Para-7 after the words“it came to be known” and before the words “We thePlaintiffs”, the words “father of Def. No. I” may be addedand in the same line after the words “father” and before thewords “mortgage” the words “Late Harihar Prasad” may beadded.

9. That in the plaint in fourth line of Para-8 where the words“close” is written after that the words “Sandhi’’ may be added.10. That in the plaint in the fifth line of Para-9 after the words“can be of the owner” the entire line may be cut, and thefollowing words may be added- “and nor can be. Since the Plaintiffs aforesaid case whichrelates to Landlord and owner dispute regarding the disputedroom and ownership right of the said disputed room did notget transferred on the basis of the said possessory mortgagein favour of Def. No. 1’s father or Def. No. 1 rather in respectof the disputed room of the tenancy rights between thePlaintiffs and Def. No.1. The ownership right andLandlordship right remain in existence which Defendant hasdenied in the written statement filed by him in the casementioned above and written statement filed in the case SmallCause Case No. 3/07 mentioned above. In such circumstancesfrom the disputed room described below on the basis of Def.No. 1’s claim of ownership rights and possession the tenancyright of Def. No. 1 has automatically ceased, and throughnotice also tenancy has been terminated and Def. No. 1 hasby inducting Defendants Second Party as sub-tenant misusedhis right, on the basis of which also the Defendants are liableto be evicted, for which the desired relief is being claimed inthis suit.”

11. That in the plaint after Para-9 further Para 9(a), 9(b),9(c), 9(d) may be added as below:

Para 9(a) That after coming to know about the document ofpossessory mortgage dated 12-02-57 shown by the Def. No.1 its copy was obtained on date 10.09.2008 and on gettingcorrect information about the document of mortgage deedthen to avoid any legal complication to pay by hand theamount 700/- Rupees mentioned in the mortgage deed andother expenses 5100/- Rupees total 5800/- rupees and to takethe original document visited the Def. No. 1 many times whenon date 31-03-09 he finally refused to take the said amountor any other amount or to return the possessory mortgagedeed dated 12-02-57, therefore in the aforesaid case onlyclaim for discharge of mortgage is being made and in theaforesaid case only separate application for deposit of 5800/- Rupees amount under Section 83 of Transfer of PropertyAct is being given and in respect of the said amount depositedin the Court for sending notice to Def. No. 1 and after depositof original document in the Court to authorize receipt of thesaid deposited amount 5800/- Rupees prayer has been madewhich is also under consideration.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

906SUPREME COURT REPORTS[2023] 6 S.C.R.APara-9(b) That in the end of the plaint the description of theroom only 1/3 portion has been mortgaged by Plaintiffs’ fatherHarihar Prasad in favour of Def. No. 1’s father Gulab Chandon date 12-02-57 rent of entire room 700/- Rupees in lieu ofinterest of principal debt after deducting has been mentionedin the possessory mortgage deed. In this manner apart fromB700/- Rupees principal amount no other amount remainspayable to father of Def. No. 1 but as abundant precautionfor deposit of 700/- + 5100/- Rs. 5800/- Rs. amount undersection 83 of Transfer of Property Act in the Court applicationis being given.CPara 9(c) That late Harihar Prasad son of the Plaintiffsremained mortgagor of 1/3 portion of the disputed tenantedroom described below in the plaint after whose death thePlaintiffs are the legal representatives of the mortgagor whosemortgagee father of Def. No. 1 after whose death Def. No. 1Dis the legal representative of the mortgagor. Particulars ofthe said document are as below:- E

F

G

H

9(d) That the Def. No. 1 on the basis of the said documentmortgage deed after his father’s death the 1/3 portion of thetenanted room in dispute is in possession of the mortgagorand in respect of 1/3 portion of mortgaged room in possessionof Def. No. l during the limitation period no notice was givenby father of Def. No. 1 or Def. No. 1 as mortgagor forpayment of amount 700/- to the Plaintiffs’ father or thePlaintiffs nor was any such notice served nor was any claimfor recovery of the said amount ever made by Def. No. 1’sfather or Def. No. 1 nor was any suit for foreclosure or saleof possessory mortgage ever filed m respect of 1/3 portion ofthe tenanted room in respect of ownership and possessoryrights thereof, therefore the Plaintiffs’ right of discharge of1/3 portion of the disputed room is in live condition, Plaintiffs’suit is in all conditions within limitation.

12. That in the plaint after the last line of para-10 before thewords “refused” and “left with no choice”, words “2/3 portionof the disputed tenanted room which was not mortgaged andonly 1/3 portion of the disputed room remained mortgaged inthe possessory mortgage and in respect of that 1/3 portionrelation between mortgagor and mortgagee continued andDef. No. 1 denied the Plaintiffs; title of the entire room andhas claimed ownership of ground below the disputed tenantedroom which is three storeyed therefore suit for eviction fromthe disputed room of Def. No. 1 and his sub-tenantsDefendants Second party” may be added.

13. That in the plaint after second line of para-11 after thewords “mortgage deed” and before the word “ mauja” thefollowing words may be added- “And by refusing to return mortgage deed document andtaking mortgage amount of 1/3 portion of room amount 700/Rs. or amount 5800 and releasing 1/3 portion of the roomand by denying Plaintiffs’ ownership right over disputed roomdescribed dated 03-09-08 in the case Small Cause Case No.3/2007 in the Court of Judge Small Cause Civil judge (S.D.)Parameshwar Prasad etc. versus Dr. Ganesh Prasad etc. andby denial in written statement filed against aforesaid plaint”.

ABC

D

E

F

G

H

A

B

C

D

E

F

G

H

14. That the words in Para 12 of the plaint may be cut andthe following words may be added- “That value of the suit since mortgage deed amount in respectof 1/3 portion of the disputed tenanted room is 700/- andother expenses amount 5100/- total amount 5800/- Rs. paidas abundant caution for discharge and possession of themortgaged room 1/3 for prayer (a) is being fixed and on thebasis of denial of ownership right and possession of ownerPlaintiffs in the filed suit for dispossession prayer (A-1)valuation amount at the rate Rs. 300/- Rs. monthly twelve timesamount 3600/- Rupees is being fixed. In this manner totalvalue amount 5800 +amount 3600 = Rs. 9400/- on whichCourt fees is payable.

15. That in the plaint after para 12 and before the prayerbefore the words “Plaintiffs” “Para 13” may be written.

16. That in the plaint present prayer (a) may be cut and in itsplace the following prayer as prayer “(a)” and “(aa) asfollows may be added- “(a) That by the Court decree may be passed for discharge ofregistered possessory mortgage deed dated 12.02.57described below in the plaint may be passed to the effect thatthe security amount 700/- mentioned in the possessorymortgage deed and other expenses amount 5100/- totalamount 5800/- deposited by the Plaintiff in the Court may beinformed to Def. No. 1 and original document possessorymortgage described in Para 9 (c) of the plaint may be depositedin the Court by Def. No. 1 and. Def. No. 1 may be authorizedto take the said amount and decree for discharge of possessorymortgage may be passed in favour of Plaintiffs and againstthe Def. No. 1 and in the event of failure by the Court thedocument mortgage deed dated 12.02.57 in below para 9(c)of plaint may be discharged and possession of portion of thedisputed tenanted room may be given to the Plaintiffs and theoriginal possessory mortgage deed dated 12.02.57 may bedeposited in the Court and Def. No. 1 may be authorized totake the said deposited amount a decree may be passed.

(A-1) That a decree for possession of the Plaintiffs over thedisputed tenanted room described below in the plaint anddispossession of the Defendants may be passed by the Courtand Defendants may be ordered to remove the tenanted roomdescribed below from their possession under inspection ofthe Court and give possession thereof to the Plaintiffs and inthe event of failure execution of the decree may be donethrough an officer of the Court/Advocate Commissioner adecree may be passed in favour of the Plaintiffs and againstthe Defendants.

17. That below the words “description” below the Prayer inthe plaint and above the boundary entire words may be cutand in its place the following words may be added- “One room in Block No. 2-5 A. No. 25, 26, 27, 28, 29 in CityBallia Chowk, Paragana, Ballia, whose 1/3 portion only ismortgaged in the document mortgage deed 2/3 portion is notmortgaged and the entire room given in the boundary isdisputed”

16. The aforesaid amendment as prayed for by the Plaintiffs wasopposed by the Defendant by filing his reply.

17. The Civil Judge vide order dated 20.05.2013, declined to allowthe amendment as prayed for by the Plaintiffs and accordingly, rejectedthe application.

18. The Plaintiffs challenged the aforesaid order passed by thelearned Civil Judge by filing a civil revision application in the Court of theAdditional District Judge, Ballia. The District Court vide order dated25.02.2015, allowed the revision application and permitted the Plaintiffsto amend the plaint, as prayed for. However, as the amendment applicationwas filed after 3 years from the date of the institution of the suit, therevisional court thought fit to impose costs of Rs. 3,000/- upon thePlaintiffs.

19. The Defendant being dissatisfied with the order passed by theAdditional District Judge allowing the revision application filed by thePlaintiffs as aforesaid, challenged the said order before the High Courtby filing a petition under Article 227 of the Constitution. The High Courtdeclined to interfere with the order passed by the District Court in exercise AB

C

D

E

F

G

H

Aof its supervisory jurisdiction and accordingly, rejected the applicationfiled by the Defendant herein vide order dated 04.07.2018.

20. The relevant part of the impugned order passed by the HighCourt reads as under:

“Sri Chandra Bhan Gupta, learned counsel for the defendantBpetitioner submits that the plaintiff-respondents filed the suitin question alleging that suit property was mortgaged andpossession of the same may be given to them. By theamendment application the plaintiff-respondents claimdeletion of Section 83 of the suit and also set up the claim ofCpossession with the defendant-petitioner. The amendmentapplication was rejected by the trial court on 20.5.2013 onthe ground that it changes the nature of the suit. Aggrievedwith the aforesaid order, the plaintiffs-respondents filed thecivil revision and the same has been allowed on 22.2.2015.He further makes submission that the entire nature of the suitDhas been changed by the amendment application and as such,this Court should come for rescue and reprieve the petitioner.

D

On the other hand, Sri Rajesh Kumar, learned counsel forthe plaintiff- respondents states that the present writ petitionwas filed in the year 2015 in which an interim order wasEpassed on 10.4.2015 staying the operation of the revisionalorder dated 25.2.2015. The matter is pending since the year2015 and the suit itself is also pending since the year 2009.On account of the aforesaid interim order, the matter ispending consideration before the trial court. There was noFinfirmity or illegality in the revisional order and the writpetition is liable to be dismissed.

The Court has proceeded to examine the record in question and alsoperused the revisional order and finds that afterconsidering the entire facts and circumstances of the case,the revisional court was of the view that the amendment doesnot change the nature of the suit and no injustice should bedone on the fault of the advocate. Finally, he has allowed thecivil revision in question and set aside the order of the trialcourt dated20.5.2013. He has also allowed the amendmentapplication 35- Ka with cost of Rs. 3000/-.

G

H

GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.[J. B. PARDIWALA, J.]

The Court does not find any infirmity or illegality in the orderof the revisional court and the same is approved. However,for substantial justice, the amendment application ought tohave been allowed with cost of Rs. 5000/- and the same isaccepted by the parties. In case, the plaintiff-respondentsdeposit Rs. 5000/- within three weeks from today, the trialcourt will proceed in the matter and finalise the proceedingin accordance with law without affording any unnecessaryadjournment to the parties.”

21. In view of the aforesaid, the Defendant is here before thisCourt with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT-DEFENDANT

22. Mr. Rajeev M. Roy, the learned counsel appearing for theAppellant Defendant, vehemently, submitted that the High Courtcommitted a serious error in passing the impugned order. The principalargument of the learned counsel is that the impugned order of the HighCourt is a non-speaking order. No reasons have been assigned in theimpugned order.

23. The learned counsel further submitted that the High Courtfailed to appreciate an important question of law that the amendmenthas changed the entire nature of the suit. He would submit that whenthe first suit was filed in the Small Causes Court, the Defendant wasshown to be a tenant in arrears of rent and it was further alleged that theDefendant had inducted sub-tenants in the suit property. The learnedcounsel would argue that after the dismissal of the suit filed in the SmallCauses Court for non- prosecution, the Plaintiffs filed a fresh suit in theCivil Court labelling it as one under Section 83 of the TP Act. Later, thePlaintiffs by way of amendment could not have said that the suit is notunder Section 83 of the TP Act but the tenancy of the Defendant beterminated and he be directed to hand over the possession of the shop.In other words, it is argued that the Plaintiffs could not have reintroducedthe case of the tenancy and pray for a decree of possession.

24. The learned counsel vehemently submitted that even whilepermitting the Plaintiffs to ament the suit, the courts below ought to havekept the provisions of Order IX Rule 9 of the CPC in mind, as the SuitNo. 154 of 2009 is not maintainable on the same cause of action. In AB

C

D

EF

G

H

Aother words, by way of proposed amendment, the Plaintiffs are trying toreintroduce the cause of action pleaded in the previous suit which stooddismissed for non-prosecution. This according to the learned counsel isnot permissible in law.

25. It was further argued that as the suit is one for possession ofBthe property in question, the same could have been instituted only in theSmall Causes Court and not before the Civil Court.

26. The learned counsel placed strong reliance on the decision ofthis Court in the context of Revajeetu Builders and Developers v.Narayanaswamy & Sons and Others reported in (2009) 10 SCC 84,Cto submit that when the proposed amendment constitutionally orfundamentally changes the nature and character of the case then thecourt should not permit the plaintiffs to amend the plaint.

27. In such circumstances referred to above, the learned counselappearing for the Appellant Defendant prays that there being merit inDhis appeal, the same may be allowed and the impugned order be setaside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT-PLAINTIFFS

28. On the other hand, this appeal has been, vehemently opposedEon behalf of the Original Plaintiffs submitting that no error not to speakof any error of law could be said to have been committed by the HighCourt while passing the impugned order. The learned counsel wouldsubmit that the High Court rightly declined to interfere with the orderpassed by the District Court permitting the Plaintiffs to amend the plaintFin exercise of its supervisory jurisdiction under Article 227 of theConstitution.

29. According to the learned counsel appearing for the Plaintiffs,the provisions of Order IX Rule 9 of the CPC have no application to thefacts of the present case. He would submit that for the applicability ofOrder IX Rule 9 of the CPC, the cause of action in the second suitGshould be the same. However, the cause of action in both the suits aredifferent.

30. The learned counsel further submitted that the issue of OrderIX Rule 9 of the CPC has nothing to do with the question of whether thePlaintiff should be permitted to amend the plaint under the provisions ofHOrder VI Rule 17 of the CPC.

31. In such circumstances referred to above, the learned counselprays that there being no merit in the present appeal the same may bedismissed.

ANALYSIS

32. Having heard the learned counsel appearing for the partiesand having gone through the materials on record the only question thatfalls for our consideration is whether the High Court committed anyerror in passing the impugned order.

33. There cannot be any doubt or dispute that the courts shouldbe liberal in allowing applications for leave to amend pleadings but it isalso well settled that the courts must bear in mind the statutory limitationsbrought about by reason of the Code of Civil Procedure (Amendment)Acts; the proviso appended to Order VI Rule 17 being one of them. InNorth Eastern Railway Administration, Gorakhpur v. Bhagwan Dasreported in (2008) 8 SCC 511, the law has been laid down by this Courtin the following terms: (SCC p. 517, para 16)

“16. Insofar as the principles which govern the question ofgranting or disallowing amendments under Order 6 Rule 17CPC (as it stood at the relevant time) are concerned, theseare also well settled. Order 6 Rule 17 CPC postulatesamendment of pleadings at any stage of the proceedings. InPirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR1957 SC 363] which still holds the field, it was held that allamendments ought to be allowed which satisfy the twoconditions: (a) of not working injustice to the other side, and(b) of being necessary for the purpose of determining thereal questions in controversy between the parties. Amendmentsshould be refused only where the other party cannot be placedin the same position as if the pleading had been originallycorrect, but the amendment would cause him an injury whichcould not be compensated in costs. (Also see GajananJaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1SCC 166].)”

34. In the case of P.A. Jayalakshmi v. H. Saradha and Othersreported in (2009) 14 SCC 525, the above observations were reiteratedby this Court and in the light of the same, this Court in para 9 held asunder:

A

B

C

D

EF

G

H

“9. By reason of the Code of Civil Procedure (Amendment)Act, 1976, measures have been taken for early disposal ofthe suits. In furtherance of the aforementioned parliamentaryobject, further amendments were carried out in the years 1999and 2002. With a view to put an end to the practice of filingapplications for amendments of pleadings belatedly, a provisowas added to Order 6 Rule 17 which reads as under:

A

B

“17. Amendment of pleadings.—The court may at any stageof the proceedings allow either party to alter or amend hispleading in such manner and on such terms as may bejust, and all such amendments shall be made as may benecessary for the purpose of determining the real questionsin controversy between the parties:

C

Provided that no application for amendment shall beallowed after the trial has commenced, unless the courtcomes to the conclusion that in spite of due diligence, theparty could not have raised the matter before thecommencement of trial.””

D

35. InB.K. Narayana Pillai v. Parameswaran PillaiandAnother reported in (2000) 1 SCC 712, this Court referred to the followingpassage from A.K. Gupta and Sons Ltd. v. Damodar ValleyECorporation reported in AIR 1967 SC 96 wherein, it was held as follows:- “4. This Court in A.K. Gupta & Sons Ltd. v. Damodar ValleyCorpn. [AIR 1967 SC 96 : (1966) 1 SCR 796] held:

“The general rule, no doubt, is that a party is not allowedby amendment to set up a new case or a new cause ofaction particularly when a suit on new case or cause ofaction is barred: Weldon v. Neal [(1887) 19 QBD 394 : 56LJ QB 621]. But it is also well recognised that where theamendment does not constitute the addition of a new causeof action or raise a different case, but amounts to no morethan a different or additional approach to the same facts,the amendment will be allowed even after the expiry of thestatutory period of limitation: See Charan Das v. Amir Khan[AIR 1921 PC 50 : ILR 48 Cal 110] and L.J. Leach andCo. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 :1957 SCR 438]

F

G

H

The principal reasons that have led to the rule lastmentioned are, first, that the object of courts and rules ofprocedure is to decide the rights of the parties and not topunish them for their mistakes (Cropper v. Smith [(1884)26 ChD 700 : 53 LJ Ch 891 : 51 LT 729] )and secondly,that a party is strictly not entitled to rely on the statute oflimitation when what is sought to be brought in by theamendment can be said in substance to be already in thepleading sought to be amended (Kisandas Rupchand v.Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644 : 11Bom LR 1042] approved in Pirgonda Hongonda Patil v.Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957 SCR595] ).

The expression ‘cause of action’ in the present context doesnot mean ‘every fact which it is material to be proved toentitle the plaintiff to succeed’ as was said in Cooke v. Gill[(1873) 8 CP 107 : 42 LJCP 98 : 28 LT 32] in a differentcontext, for if it were so, no material fact could ever beamended or added and, of course, no one would want tochange or add an immaterial allegation by amendment.That expression for the present purpose only means, a newclaim made on a new basis constituted by new facts. Sucha view was taken in Robinson v. Unicos Property Corpn.Ltd. [(1962) 2 All ER 24 (CA)] and it seems to us to be theonly possible view to take. Any other view would make therule futile. The words ‘new case’ have been understood tomean ‘new set of ideas’: Dornan v. J.W. Ellis and Co. Ltd.[(1962) 1 All ER 303 (CA)] This also seems to us to be areasonable view to take. No amendment will be allowed tointroduce a new set of ideas to the prejudice of any rightacquired by any party by lapse of time.”

Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] thisCourt held: (SCC p. 399, para 22)

“The power to allow an amendment is undoubtedly wideand may at any stage be appropriately exercised in theinterest of justice, the law of limitation notwithstanding.But the exercise of such far-reaching discretionary powersis governed by judicial considerations and wider the ABC

D

E

F

G

H

discretion, greater ought to be the care and circumspectionon the part of the court.”

A

In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it washeld: (SCC p. 93, para 4)

“4. It is clear from the foregoing summary of the main rulesBof pleadings that provisions for the amendment ofpleadings, subject to such terms as to costs and giving ofall parties concerned necessary opportunities to meet exactsituations resulting from amendments, are intended forpromoting the ends of justice and not for defeating them.CEven if a party or its counsel is inefficient in setting out itscase initially the shortcoming can certainly be removedgenerally by appropriate steps taken by a party which mustno doubt pay costs for the inconvenience or expensecaused to the other side from its omissions. The error isnot incapable of being rectified so long as remedial stepsDdo not unjustifiably injure rights accrued.”……”

36. In one of the recent pronouncements of this Court, in the caseof Life Insurance Corporation of India v. Sanjeev Builders PrivateLimited and Another, Civil Appeal No. 5909 of 2022 dated 01.09.2022,the position of law has been explained as under:

E

“70. ….. (ii) All amendments are to be allowed which arenecessary for determining the real question in controversyprovided it does not cause injustice or prejudice to the otherside. This is mandatory, as is apparent from the use of theword “shall”, in the latter part of Order VI Rule 17 of theFCPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and properadjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided G

(a) the amendment does not result in injustice to theother side, (b) by the amendment, the parties seeking amendmentdoes not seek to withdraw any clear admission made H

by the party which confers a right on the other sideand

(c) the amendment does not raise a time barred claim,resulting in divesting of the other side of a valuableaccrued right (in certain situations).

(iv) A prayer for amendment is generally required to beallowed unless

(i) by the amendment, a time barred claim is sought to beintroduced, in which case the fact that the claim would betime barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, thecourt should avoid a hypertechnical approach, and isordinarily required to be liberal especially where the oppositeparty can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering amore satisfactory decision, the prayer for amendment shouldbe allowed.

(vii) Where the amendment merely sought to introduce anadditional or a new approach without introducing a timebarred cause of action, the amendment is liable to be allowedeven after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intendedto rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a groundto disallow the prayer. Where the aspect of delay is arguable,the prayer for amendment could be allowed and the issue oflimitation framed separately for decision.

(x) Where the amendment changes the nature of the suit orthe cause of action, so as to set up an entirely new case,foreign to the case set up in the plaint, the amendment must A

B

C

D

E

F

G

H

Abe disallowed. Where, however, the amendment sought is onlywith respect to the relief in the plaint, and is predicated onfacts which are already pleaded in the plaint, ordinarily theamendment is required to be allowed.

(xi) Where the amendment is sought before commencement ofBtrial, the court is required to be liberal in its approach. Thecourt is required to bear in mind the fact that the oppositeparty would have a chance to meet the case set up inamendment. As such, where the amendment does not result inirreparable prejudice to the opposite party, or divest theopposite party of an advantage which it had secured as aCresult of an admission by the party seeking amendment, theamendment is required to be allowed. Equally, where theamendment is necessary for the court to effectively adjudicateon the main issues in controversy between the parties, theamendment should be allowed. (See Vijay Gupta v. GagninderDKr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”

37. Thus, the Plaintiffs and Defendant are entitled to amend theplaint, written statement or file an additional written statement. It is,however, subject to an exception that by the proposed amendment, anopposite party should not be subject to injustice and that any admissionEmade in favour of the other party is not but wrong. All amendments ofthe pleadings should be allowed liberally which are necessary fordetermination of the real controversies in the suit provided that theproposed amendment does not alter or substitute a new cause of actionon the basis of which the original lis was raised or defence taken.

F38. Inconsistent and contradictory allegations in negation to theadmitted position of facts or mutually destructive allegations of factsshould not be allowed to be incorporated by means of amendment to thepleadings.

39. In the case on hand, the first suit filed in the Small CausesGCourt was on the premise that the Defendant as a tenant was in arrearsof rent and had unlawfully inducted sub-tenants in the tenanted premises.Thus, the Plaintiffs put forward a case, as if, there was a landlord tenantrelationship between the parties. The said suit came to be dismissed fornon-prosecution. Later in point of time, the present suit came to be filedin the Civil Court with the prayer that the Plaintiffs be permitted to redeemHthe mortgage and take back the possession of the suit property.

40. It appears that the present suit in which the courts belowpermitted the Plaintiffs to amend the plaint is based on the stance takenby the Defendant in his written statement filed in the first suit i.e., theSmall Cause Case No. 3 of 2007, which came to be dismissed for non-prosecution. However, it appears that the Plaintiffs have not given uptheir case that the Defendant is a tenant in the suit property and hasinducted sub-tenants. It is also the case of the Plaintiffs that the Defendantis in arrears of rent. Thus, the stance of the Plaintiffs in the present suitis two-fold. First, as regards the tenant-landlord relationship and secondly,the case of redemption of mortgage.

41. The pleadings are so poor and pathetic that as a result, thisCourt found it extremely difficult to understand what the Plaintiffs intendto say by way of the amendment. With lot of effort, ultimately what wehave been able to understand is that the father of the Appellant Defendant,namely, late Gulab Chand was the mortgagee of the suit property. Thefather of the Plaintiffs, namely, late Harihar Prasad was the mortgagorand he executed a mortgage deed dated 12.02.1957 in favour of thefather of the Appellant Defendant for a sum of Rs. 700/-. The grandfatherof the Appellant Defendant, namely, late Laxman Prasad remained inoccupation of the suit property as a tenant from the year 1953 at the rateof Rs. 23 monthly rent and later the father of the Appellant Defendantoccupied the suit property, as a tenant till the year 2005 i.e., the year ofhis demise. Thereafter, the Appellant Defendant became the tenant ofthe suit property. What is sought to be conveyed by the AppellantDefendant is that the grandfather and father of the Plaintiffs were tenantsin the suit property and a mortgage deed was also drawn and executedin the year 1957 with respect to the same property. It is also the case ofthe Plaintiffs that the Appellant Defendant has inducted sub-tenants inthe suit property.

42. A three-Judge Bench of this Court in the case of FirmSriniwas Ram Kumar v. Mahabir Prasad and Others reported inAIR 1951 SC 177, has held that a party is entitled to take alternativepleas in support of its case. Where alternative pleas arose to some extentfrom the admitted position of the defendant, such plea is not impermissiblemerely because it is inconsistent with the other plea. It held that a plaintiffmay rely upon different rights alternatively and there is nothing in theCPC to prevent a party from making two or more inconsistent sets ofallegations claiming relief therein in the alternative. It further observed AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Athat although, a Court should not grant relief to a plaintiff in a case inwhich there is no foundation in a pleading on which the other side wasnot called upon or had opportunity to meet yet when the alternative casewhich, the plaintiff could have made was not only admitted by defendantin his written statement but was expressly put forward as an answer tothe claim which the plaintiff made in the suit, there would be nothingBimproper in giving the plaintiff a decree upon the case which the defendanthimself makes.

43. The view that a plaintiff is entitled to plead even inconsistentpleas while seeking alternative reliefs was reiterated by this Court in G.Nagamma and Another v. Siromanamma and Another reported inC(1996) 2 SCC 25. In that case, a suit for specific performance of anagreement of re-conveyance was filed by the appellants. Later, anapplication for amendment of the plaint was sought stating that thetransactions of execution of sale deed and obtaining a document for re-conveyance came to be a single transaction, i.e., it was a mortgage byDconditional sale. So, alternatively plaintiff sought relief to redeem themortgage. The trial court and the High Court rejected the same on theground that the suit was filed for specific performance and that theamendment would change the nature of the suit as well as the cause ofaction. But this Court reversed the said decision and held that since theplaintiff therein was seeking alternative reliefs, he is entitled to pleadEeven inconsistent pleas and that the amendment of the plaint would neitherchange the cause of action nor would affect the relief.

44. In Praful Manohar Rele v. Krishnabai Narayan Ghosalkarand Others reported in (2014) 11 SCC 316, this Court followed thedecision in Firm Sriniwas Ram Kumar (supra) and reiterated theFprinciple that alternative and inconsistent pleas can be taken by a plaintiff.In that case, the plaintiff therein had alleged that the defendant thereinand his legal representatives were occupying the suit premises asgratuitous licensees and upon termination of such licence, the plaintiffwas entitled to a decree for possession. The trial court found thatGdefendants were tenants and not licensees as alleged by the plaintiff.The 1[st] Appellate Court recorded a finding to the contrary, held that thedefendants were let into the suit property by plaintiff on humanitariangrounds and as gratuitous licensees and the license was validly terminatedby plaintiff. It thus, negatived the defence of the defendants that theywere tenants. In the plaint itself, the plaintiff therein had taken anH

alternative plea that he was entitled to vacant possession of the premiseson the ground of bona fide personal need, nuisance, annoyance anddamage allegedly caused to the premises and to the adjoining gardenland belonging to him by the defendants. This Court held that thealternative plea of plaintiff and the defence set up by defendants was nodifferent from each other. The Court held that it was open to the plaintiffnot only to take a plea of license but also to alternatively plead tenancyin support of his plea for relief of recovery of possession. The Courtheld that defendants therein had specifically admitted that the propertybelongs to plaintiff and that they were in occupation thereof as tenants,and an issue was also framed whether defendants were in occupationas license or as tenants, and defendants had full opportunity to provetheir respective cases. So, the defendants cannot be said to have beentaken by surprise by the alternative case pleaded by plaintiff nor couldany injustice would result to them from the alternative plea being allowedand tried by the Court. It observed that even if the alternative plea hadnot been allowed to be raised in the suit filed by appellant, he would havebeen certainly entitled to raise that plea and seek eviction in a separatesuit filed on the very same grounds.

45. In Revajeetu Builders (supra), cited by the learned counselfor the Appellant, a two-Judge Bench of this Court had an occasion todeal with Order 6 Rule 17 C.P.C. In that case, the judgment of thisCourt in Usha Balashaheb Swami and Others v. Kiran Appaso Swamiand Others reported in (2007) 5 SCC 602, was followed. It referred tothe judgment in M/s. Ganesh Trading Co. v. Moji Ram reported in(1978) 2 SCC 91, wherein at para 50, this Court observed that if a plaintiffseeks to alter the cause of action itself and introduces it indirectly throughamendment of his pleadings, an entirely new or inconsistent cause ofaction, amounting virtually to the substitution of a new plaint or a newcause of action in place of what was originally there, the Court willrefuse to permit it, if it amounts to depriving the party, against which asuit is pending, of any right which may have accrued in its favour due tolapse of time.

46. In our considered opinion, the aforesaid observations also donot come to the aid of the Appellant herein, inasmuch as, even in thejudgment in Ganesh Trading Co. (supra), it had not referred to thethree-Judge Bench judgment of this Court in Firm Sriniwas Ram Kumar(supra).

AB

C

D

E

F

G

H

A47. In the event, if the pleas sought to be introduced by plaintiff byway of an amendment is also the plea, which the defendant has set up inhis written statement and such a plea of the plaintiff is an alternativeplea, even though it is inconsistent with the original plea, since there is noprejudice caused to the defendant, the Court is not precluded from allowingthe amendment.B

48. At this stage, we may refer to rely upon the decision of thisCourt in the case of State of Madhya Pradesh v. Union of India andAnother reported in (2011) 12 SCC 268. We quote the relevantobservations as contained in para 8 of the judgment: -“8. The purpose and object of Order 6 Rule 17 of the Code isCto allow either party to alter or amend his pleadings in suchmanner and on such terms as may be just. Amendment cannotbe claimed as a matter of right and under all circumstances,but the courts while deciding such prayers should not adopta hypertechnical approach. Liberal approach should be theDgeneral rule, particularly in cases where the other side canbe compensated with costs. Normally, amendments are allowedin thepleadings to avoid multiplicity of litigations.”

(Emphasis supplied)

49. The Appellant Defendant has also put forward an argumentEas regards the applicability of Order IX Rule 9 of the CPC to make goodhis submission that the amendment should not be permitted as the presentsuit by itself is not maintainable as the earlier suit filed in the SmallCauses Court came to be dismissed for non-prosecution under theprovisions of Order IX Rule 8 of the CPC.50. We could have at this stage closed the matter saying that if itFis the case of the Appellant Defendant that the present suit is notmaintainable in view of Order IX Rule 9 of the CPC, then it shall beopen for him to raise such a plea before the trial court by filing anapplication under Order VII Rule 11 for rejection of plaint. However,we are of the view that as an important question of procedural law hasGbeen raised, we take this opportunity of explaining in this appeal itself asto why the plea of Order IX Rule 9 of the CPC should fail.

51. Order IX Rule 9 reads thus:

“9. Decree against plaintiff by default bars fresh suit.-(1)Where a suit is wholly or partly dismissed under rule 8, the H

plaintiff shall be precluded from bringing the fresh suit inrespect of the same cause of action. But he may apply for anorder to set the dismissal aside, and if he satisfies the Courtthat there was sufficient cause for his non-appearance whenthe suit was called on for hearing, the Court shall make anorder setting aside the dismissal upon such terms as to costor otherwise as it thinks fit, and shall appoint a day forproceeding with the suit.

(2) No order shall be made under this rule unless notice ofthe application has been served on the opposite party.”

52. Order IX Rule 9 bars fresh suit in respect of the same causeof action in case the earlier suit was dismissed as indicated in Order IXRule 8 of the CPC. The term “same cause of action” assumes significancein as much as the bar under Order IX Rule 8 of the CPC applies to alater suit only in respect of the very same cause of action. In case thecause of action in the later suit was altogether different, which has nothingto do with the cause of action in the earlier suit, the statutory bar has noapplication to such later suits. It was only with a view to curb the tendencyof filing multiple suits, on the basis of the very same cause of action,successively even after the dismissal of the earlier suit that such aprovision has been introduced. It was not the intention of the Legislatureto bar the subsequent suits between the parties and the same was evidentby the qualifying words, “same cause of action”. Therefore, everythingdepends upon the cause of action and in case the subsequent cause ofaction arose from a totally different bunch of facts, such suit cannot beaxed by taking shelter to the provision of Order IX Rule 9 of CPC.

53. This Court in The Gaya Municipality v. Ram Prasad Bhattand Anr. in Civil Appeal No. 29 of 1965 decided on 8[th] September, 1967,explained the scope of Order IX Rule 9 of the CPC thus:

“In our view, the present suit is not barred by O. IX r. 9, C.P.C.The principles for determining whether the causes of actionin two suits are different or not were laid down by the PrivyCouncil in Mohammad Khalil Khan v. Mahbub Ali Khan A.I.R.(1949) P.C. 78 and referred to with approval by this Court inSuraj Rattan Thirani v. Azamabad Tea Company A.I.R. (1965)S.C. 295. The only question is whether applying theseprinciples the High Court was right in holding that the cause AB

CD

E

F

G

H

Aof action was different in the present suit from that in the1941 suit. It seems to us that if the two plaints are analysedclosely it would appear that in the first suit the cause ofcomplaint was a threat by the defendant municipality tointerfere with the alleged rights of the plaintiff by constructingstalls immediately to the south of his house. At that time noBstalls had been constructed and the alleged rights of theplaintiff had not been actually infringed. During the courseof the suit the construction of the stalls was commenced, andthe same was completed, at some appreciable distance fromthe house of the plaintiff, after the suit was dismissed forCdefault. Further the complaint in the 1941 suit was that theright to use the footpath just south of the municipal drainwas being infringed which footpath was alleged to have beenused by pedestrians and customers of the shop of the plaintiff;there was no allegation that his right to access to HallidayRoad was being threatened or infringed. In the present suitDwhat is substantially alleged is that the plaintiff had a rightto access to the house from all sides of the said plot No. 11459in question abutting and lying in front of the plaintiff ’s house.It will also be noticed that the present plaint alleges apermanent deprivation of plaintiff’s alleged right of accessEto Halliday Road. The constructions are of a permanentnature, and, in our view, a fresh cause of action arose whenthe stalls were constructed in 1942.”

54. What is a cause of action is now settled beyond any doubt.The classic definition of that expression is that of Lord Justice Brett inFJay Cook v. Henry S. Gill reported in (1873) LR 8 CP 107 as under:

“‘Cause of action’ has been held from the earliest time tomean every fact which is material to be proved to entitle theplaintiff to succeed, — every fact which the defendant wouldhave a right to traverse.”G

55. Lord Justice Fry put it in the negative by saying, “Everythingwhich, if not proved, gives the defendant an immediate right tojudgment, must be part of the cause of action.” This definition is thebasis of all subsequent decisions containing an interpretation of theexpression ‘cause of action.’ It was accepted in Deep Narain Singh v.HMinnie Dietert and anr. reported in ILR (1904) 31 Cal 274 at p. 282

and by the Privy Council in Mohammad Khalil Khan and others v.Mahbub Ali Mian and others reported in AIR 1949 PC 78 at p. 86,para 61 point No. 2.

56. The aforesaid cases also make it clear that the cause of actionin a suit has no reference to the defence taken in the suit, nor is it relatedto the evidence by which that cause of action is established. InMohammad Khalil Khan (supra) to which, we have referred above,this point is made in the judgment of the Privy Council in para 61, pointNo. (5), as follows:—

“The cause of action has no relation whatever to the defencethat may be set up by the defendant nor does it depend uponthe character of the relief prayed for by the plaintiff. It refers… to the media upon which the plaintiff asks the Court toarrive at a conclusion in his favour.”

57. Cause of action should also be distinguished from ‘remedy’which is the means or method whereby the cause of action orcorresponding obligation is effectuated and by which a wrong is redressedand relief obtained. The one precedes and gives rise to the other, butthey are separate and distinct from each other and are governed bydifferent rules and principles. The cause of action is the obligation fromwhich springs the “action”, defined as the right to enforce an obligation,A cause of action arises when that which ought to have been done is notdone or that which ought not to have been done is done. The essentialelements of a cause of action are thus the existence of a legal right inthe plaintiff with a corresponding legal duty in the defendant, and a violationor breach of that ‘right or duty’ with consequential injury or damage tothe plaintiff for which he may maintain an action for appropriate relief orreliefs. The right to maintain an action depends upon the existence of acause of action which Involves a combination of a right on the part ofthe plaintiff and the violation of such right by the defendant. The duty onthe part of the defendant may arise from a contract or may be imposedby positive law independent of contract, it may arise of contractus orex delicto. A cause of action arises from the invasion of the plaintiff’sright by violation of some duty Imposed upon the defendant in favour ofthe plaintiff either by voluntary contract or by positive law. (See: SardarBalbir Singh v. Atma Ram Srivastava reported in AIR 1977 ALL 211(FB))

AB

C

D

E

F

G

H

58. Secondly, the cause of action must be distinguished from theevidence upon which, that cause of action is proved and though the onehas no relation to the other, still the nature of the cause of action may beindicated by the nature of the evidence by which it is supported. Thisagain is made clear in Mohammad Khalil Khan (supra) para. 61 at P.86 in points Nos. 3 and 4, which are put as follows:—

A

B

“(3) If the evidence to support the two claims is different,then the causes of action are also different. …

(4) The cause of action in the two suits may be considered tobe the same if in substance they are identical. …”

C

59. The decision of the Privy Council in Mohammad Khalil Khan(supra) was taken notice of by this Court in the case of Suraj RattanThirani and Others v. Azamabad Tea Co. Ltd. and Others reportedin AIR 1965 SC 295. This Court, while explaining the true purport ofOrder IX Rule 9 of the CPC observed in paras 29 & 30 resply as under:- D

“28. A cause of action is a bundle of facts on the basis ofwhich relief is claimed. If in addition to the facts alleged inthe first suit, further facts are alleged and relief sought ontheir basis also, and he explained the additional facts to bethe allegations about possession and dispossession in OctoberE1934, then the position in law was that the entire complexionof the suit is changed with the result that the words of Order9 Rule 9 “in respect of the same cause of action” are notsatisfied and the plaintiff is entitled to reagitate the entirecause of action in the second suit. In support of thissubmission, learned counsel invited our attention to certainFobservation in a few decision to which we do not consider itnecessary to refer as we do not see any substance in theargument.

E

29. We consider that the test adopted by the Judicial Committeefor determining the identity of the causes of action in twosuits in Mohammed Khalil Khan v. Mahbub Ali Mian [75 IA121] is sound and expresses correctly the properinterpretation of the provision. In that case Sir MadhavanNair, after an exhaustive discussion of the meaning of theexpression “same cause of action” which occurs in a similarcontext in para (1) of Order 2 Rule 2 of the Civil ProcedureCode observed:

G

H

“In considering whether the cause of action in thesubsequent suit is the same or not, as the cause of action inthe previous suit, the test to be applied is/are the causes ofaction in the two suits in substance — not technically —identical?””

60. Thus, we may sum it up saying that Order IX Rule 9 of theCPC provides that when the suit is wholly or partially dismissed underRule 8 (dismissed for default) the Plaintiffs shall be precluded frombringing in a fresh suit, in respect of the same cause of action. Thepresent suit i.e., Suit No. 154 of 2009 filed in the Court of Civil Judge(J.D.) Eastern, District Ballia is not filed on the same cause of action. Inthe present suit, the case of the Plaintiffs as put up in the alternative isthat the Defendant is in possession of the suit property as a mortgageeand they are ready to redeem the mortgage by making the necessarypayment of the mortgaged amount and take back the possession. Whetherthe relief prayed for is time barred or not is for the trial court to decideon the basis of the evidence that the parties may lead. As observed bythe Privy Council in Mohammad Khalil Khan (supra) if the evidenceto support the two claims is different than the causes of action are alsodifferent. Hence, the contention raised on the basis of the provisions ofOrder IX Rule 9 of the CPC has no merits.

61. The matter may also be looked at from a different angle. Letus assume for the moment that in the first suit also the plaintiffs hadprayed for a relief, seeking redemption of mortgage as prayed for in thepresent suit. Even in such circumstances, whether with both the reliefsidentical in the two suits and the cause of action also the same, theprovisions of Order IX Rule 9 of the CPC would operate as a bar for themaintainability of the present suit. The right to redeem, is a right conferredupon the mortgagor by an enactment, of which he can only be deprivedby means and in manner indicated for that purpose and strictly compliedwith. In Shridhar Sadba Powar v. Ganu Mahadu Kavade and othersreported in ILR (1928) 52 Bom 111, a suit for redemption was filed butwas dismissed under Order IX, Rule 8, of the CPC. The mortgagorbrought a second suit for redemption and it was contended that it wasbarred under Order IX Rule 9 of the CPC. Marten, C.J. and Crump, J.rejected this plea. The learned judges relied on the previous decisions ofthe Bombay High Court including Ramachandra Kolaji Patil v.Hanmantha reported in ILR (1920) 44 Bom 939, and pointed out that A

BC

D

EF

G

H

Athe decision of the Privy Council in Thakur Shankar Baksh v. DyaShankar and Others reported in (1887) LR 15 IA 66, was not againstthe view taken by them, as it was decided on a different state of law. InVithal Rajaram Sutar and another v. Ramchandra Pandu Jadhavand others reported in AIR 1948 Bom 226, a Full Bench of the BombayHigh Court held that the general terms of Order XXII Rule 9 of theBCPC, which provided that where a suit abated or was dismissed underthe Order, no fresh suit shall be brought on the same cause of action,cannot override the specific terms of Section 60 of the TP Act. It waspointed out that the CPC dealt with the procedure relating to all suits.There was a special law which dealt with the rights of mortgagors andCmortgagees and that substantive law was to be found in the Transfer ofProperty Act. That substantive law provided only two ways in which theright of redemption can be extinguished and they were: (i) by act of theparties, or (ii) by decree of the court. The right of redemption is anincident of a subsisting mortgage and it subsists so long as the mortgageitself subsists. As held by the Privy Council in Bhaiya Raghunath SinghDand others v. Musammat Hansraj Kunwar and others reported in(1933-34) 61 IA 362, the right of redemption can be extinguished asprovided in Section 60 of the Transfer of Property Act and when it isalleged to have been extinguished by a decree, the decree should runstrictly in accordance with the form prescribed for the purpose. UnlessEthe equity of redemption is so extinguished, a second suit for redemptionby the mortgagor, if filed within the period of limitation, is not thereforebarred.62. It follows, therefore, that if the right of redemption is notextinguished, the provision like Order IX Rule 9 of the CPC will notFdebar the mortgagor from filing a second suit because as in a partitionsuit, the cause of action in a redemption suit is a recurring one. Thecause of action in each successive action, until the right of redemption isextinguished or a suit for redemption is time barred, is a different one.

63. In the result, this appeal fails and is hereby dismissed.G64. The interim order passed by this Court dated 3.01.2019 stayingthe further proceedings of Suit No. 154 of 2009 pending in the Court ofCivil Judge (J.D.) Eastern, District Ballia is hereby vacated.

65. The trial court shall now proceed to take up the Suit No. 154of 2009 for hearing and dispose of the same at the earliest preferably H

within a period of six months from today. It is clarified that it shall beAopen for both the sides to raise all legal contentions available to them inlaw.

66. It is further clarified that we have not expressed any opinionin regard to the merits of the civil suit. The civil suit shall be decidedstrictly on the basis of the evidence that may be led by the parties inBaccordance with law.

67. We have confined our adjudication in the present appeal onlyon the limited question whether the Plaintiffs should be permitted toamend the plaint and secondly, whether the provisions of Order IX Rule9 of the CPC are applicable to the case on hand.

C

68. There shall be no order as to costs.

69. Pending application(s) if any stand disposed of.

Ankit Gyan

(Assisted by : Adityaraj Patolia, LCRA)

Appeal dismissed.

D

E

F

G

H