REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023

(@ SLP (C) NO. 28377 OF 2018)

GANESH PRASAD ….APPELLANT(S)

VERSUS

RAJESHWAR PRASAD & ORS. ….RESPONDENT(S)

J U D G M E N T

J. B. PARDIWALA, J.

1.Leave granted.

2.For the sake of convenience, the appellant herein shall be referred to as, ‘the

Original Defendant or Defendant’ and the respondents herein shall be referred to as, ‘the

Original Plaintiffs or Plaintiffs’.

3.This appeal is at the instance of the Original Defendant of Suit No. 154 of 2009

instituted by the Plaintiffs in the Court of Civil Judge (J.D.), Eastern, District Ballia for

possession of the suit property upon redemption of mortgage and is directed against the

order passed by the High Court of Judicature at Allahabad dated 04.07.2018 in the Civil

Miscellaneous W.P. 1346 of 2015, thereby affirming the order passed by the Additional

District Judge dated 25.02.2015, permitting the Plaintiffs to amend the plaint under the

provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ‘the

CPC’).

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FACTUAL MATRIX

4.The subject matter of the civil suit is a property in the form of a 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 the lawful owners of the suit property. It is the case of

the Defendant that the father of the Plaintiffs had executed a mortgage deed in favour of

the father of the Defendant in respect of 1/3

rd

portion of the suit property described

above and was put in possession of the shop. Thus, according to the Defendant, the

father of the Plaintiffs was the mortgagor and his father was the mortgagee. The said

registered mortgage deed is said to have been executed on 12.02.1957.

5.From 1957 till 2005, the mortgagee continued to remain in possession of the suit

property as neither the mortgage money was paid nor the mortgage was redeemed and

upon lapse of 30 years’ time period, the mortgagor’s right in the mortgaged property

stood extinguished in terms of Article 61A of the Schedule to the Limitation Act, 1963

(for short, ‘Act, 1963’). Sometime in the year 2005, the father of the Defendant i.e., the

mortgagee, namely, Shree Gulab Chand died.

6.On 15.03.2007, the Plaintiffs instituted, the Small Cause Suit No. 3 of 2007

against the Appellant Defendant herein and four others in the Court of Small Causes

Judge (Senior Division) for a declaration that the Plaintiffs are the lawful owners of the

suit property i.e., the shop and the same had been let out to the father of the Appellant

Defendant herein and after the demise of the father of the Defendant, he stopped paying

the rent to the Plaintiffs and illegally inducted defendant Nos. 2 to 5 resply as sub-

tenants in the shop in question. Thus, the Plaintiffs prayed for a decree of possession of

the shop.

7.The following reliefs were prayed for in the Small Cause Suit No. 3 of 2007

instituted by the Plaintiffs:

“A. Decree for eviction from the said shop as given in detail below

boundary in favour of Plaintiffs against the Defendants may be passed and

if they do not vacate within period ordered by the Court then it may be

vacated through Court and possession thereof may be given to us the

Plaintiffs.

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B. Decree for payment of 4500/- Rupees as given in detail below against

Defendants and in favour of Plaintiffs may be passed.

C. That 500/- Rupees damages decree during pendency of suit may be

passed against the Defendants and in favour of the Plaintiffs.

D. Costs of the suit may be directed to be paid by the Defendants to us the

Plaintiffs. Apart from these reliefs if Plaintiffs are entitled to any other

relief in the Court's opinion that may also be decreased in favour of the

Plaintiffs against the Defendants.”

8.In the aforesaid Suit No. 3 of 2007, the Appellant Defendant filed his written

statement denying the entire case put up by the Plaintiffs and further stating that the

father of the Plaintiffs had executed a mortgage deed dated 12.02.1957 in respect of the

suit property and i.e., how the father 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 time

redeemed the mortgage.

9.The cause of action pleaded in the plaint of the Small Cause Suit No. 3 of 2007

reads thus:-

“That the cause of action arose on date 13-11-2006 when registered notice

was sent and on date 15-11-2006 when notice was served and on date 31-12-

2006 when inspite of service of notice shop was not vacated nor rent arrear

rent was paid and comes within the jurisdiction of the Court.”

10.It appears from the materials on record that the Small Cause Suit No. 3 of 2007

referred to above came to be dismissed for non-prosecution vide order dated

20.10.2010. The order dismissing the Small Cause Case No. 3 of 2007 reads thus:-

“20-10-10-

Called out. Record presented. Plaintiff absent. No application for

opportunity has been given. In the Plaintiff's absence the suit is dismissed.”

11.After the Small Cause Case No. 3 of 2007 came to be dismissed as aforesaid, the

Plaintiffs preferred another suit (i.e. the present suit) in the Court of the Civil Judge

(J.D.) Eastern, District Ballia under Section 83 of the Transfer of Property Act, 1882

(for short, ‘the TP Act’), which came to be numbered as Suit No. 154 of 2009.

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12.In the said Suit No. 154 of 2009, the cause of action pleaded by the Plaintiffs

reads thus:

“That the cause of action arose on date 03-09-2008 on getting knowledge of

the mortgage deed and on date 31/3/09 on refusal to take amount of

mortgage deed and comes within City Ballia, Paragana and District Ballia.”

13.The reliefs prayed for in the Suit No. 154 of 2009 read 2009 as under:-

“A. By the Court notice may be given to the Defendant to take mortgage

deed amount 700/- Rupees other expenses 5100/- Rupees total 58,00/-

Rupees within the period prescribed and give possession of the below

mentioned room to us the Plaintiffs.

B. Cost of litigation may be awarded to us the Plaintiffs against the

Defendant.

C. Apart from this any alternative relief or other relief that the Plaintiffs

are entitled to in the opinion of the Court may also be decreed in favour of

the Plaintiffs and against the Defendants.”

14.In the Suit No. 154 of 2009, the Defendant filed his written statement inter alia

stating as under:

“4. That Para-4 of plaint is false and baseless. Father of the Plaintiffs had

himself executed registered mortgage deed dated 12-02-57 in favour of

father of the Defendants. In such circumstances there was no need to give

them knowledge about the registered mortgage deed. The Defendant's

father or grandfather were never tenant of the father or grandfather of the

Plaintiffs. The Plaintiffs themselves had full knowledge about this fact that

the father of the Plaintiffs had executed mortgage deed dated 12-02-57 in

favour of father of the Defendant. No rent was ever paid by the

Defendant's father or the Defendant to the Plaintiffs.

Xxx xxx xxx

6. That Para-6 of the plaint is vague and indefinite. Plaintiffs have

deliberately not given particulars of the case. It is true that according to

correct facts I the Defendant filed my true written statement in Small

Cause Suit No. 3/Year 2007 filed by the Plaintiffs in the Court of Judge

Small Causes Civil Judge (S.D.) Ballia. This case was dismissed on date

20.10.2010.

7.That Para-7 of the plaint is false and baseless, not admitted.

Plaintiffs had the knowledge about the mortgage deed from the beginning.

The mortgage money was never returned by the father of the Plaintiffs

Original mortgage deed is till today in the custody of I the Defendant.

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Father of the or I the Defendant have never been the tenant of the

Plaintiffs or their father.

Xxx xxx xxx

Additional Statement

Xxx xxx xxx

2. That factually as mentioned above Plaintiffs' father had executed

registered possessory mortgage deed on date 12.05.57 time limit for

redemption whereof 30 years was till 12-02-87. Father of the Plaintiffs

was a habitual litigant. He willingly did not redeem the mortgage within

the time limit. Death of the father of the Plaintiff also happened 6 years

after the end of this time period. Thus father of the Defendant became

owner and in possession of the room mentioned below on the basis of

adverse possession. Suit is barred by limitation.

Xxx xxx xxx

4. 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 2007 Rajeshwar

etc. versus Dr. Ganesh Prasad etc. which was dismissed on date 20-10-

2010. Thus this suit was finally decided against the Plaintiffs and in

favour of me the Defendant. Present suit is barred on this ground also by

res-judicata.”

15.It further appears from the materials on record that in the Suit No. 154 of 2009,

the Plaintiffs filed an application seeking to amend the plaint 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 of Defendant

No. 1 where the word "Defendant" has been written, after that the words

"First Party" may be added and below the name and address of Defendant

No. 1 names and addresses of the following persons may be added as

Defendant Nos. 2 to 5.

2.Rajeev Kumar age about 35 years

3.Munna age about 33 years Sons of late Om Prakash

4.Golu age about 23 years

5.Shyam Devi age about 57 years wife of late Om Prakash R/o

Joplinganj, City Ballia, Paragana and District Ballia.

…. Defendants Second Party

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2. That in the plaint line above Para-1 may be cut and in its place 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 written after the

word "following" may be curt and in its place the following words may be

added-

"In respect of any portion of the described room disputed tenancy

the possessory mortgage registered dated 12-02-57 was written and

executed, rather true fact is that Defendant No. 1's grandfather Laxman

Prasad remained in capacity of tenant in the disputed room from the year

1953 at 23/- monthly rent, subsequently Defendant No. 1's father Gulab

Chand remained as tenant in the disputed room throughout his life till the

year 2005 and after death of Defendant No. 1's father Defendant No. 1 is

continued as tenant, and he lived and the rent increased from time to time

and it was paid, and during the life time of Defendant No. 1's father Gulab

Chand rent of the disputed room became 300/- Rupees and rent was paid

from time to time by late Laxman Prasad and Gulab Chand and father of

Plaintiffs and the Plaintiffs against receipt, and in this manner till 31-03-

06, the rent had been paid as advance amount 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 as follows:

May be added as follows

"4(a) That in the portion of Plaintiffs' father in the house out of the

tenants some tenants had filed two cases Case No. 492/87 Rajaram etc.

versus Harihar etc. and Case No. 493/87 Ram Narain etc. versus Harihar

etc. in the Court of Munsif Eastern Ballia for permanent injunction

mandatory and prohibitory which was disposed of a settled in the said

Case No. 493/87 Ram. Narayan ji versus Harihar etc. grandfather of Def.

No. 1 Late Laxman Prasad was party to the case as Plaintiff No. 3 and he

had filed suit claiming being in the disputed room from the year 1953 on

25 Rupees monthly rent and the said case was disposed of through

settlement document No. 58 Ka1, settlement document No. 58 Ka1 was

treated as part of decree. In this manner it is apparent that grandfather of

Defendant No. 1 throughout his life never showed himself to be in the

disputed tenanted room as mortgagee on the basis of mortgage deed.

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7. That in the plaint after Para-5 one para as Para-5(a) below written

may be added as follows:-

"Para 5(a)- That against of Def. No. 1 from 01.04.06 rent remained in

arrears and Def. No. 1 inducted Defendants Second Party in the disputed

tenanted room and himself opened clinic with the name "Shivam Hospital"

in front of Gate of Tehsil School Ballia and started practising as doctor.

Then legal notice was given for arrears of rent and on the basis of sub-

letting of the disputed room to sub-tenants for vacating the disputed shop

and for arrears of rent and damages and subsequently after service of

notice Small Cause Suit No. 3/2007 was filed, in the Court of Judge Small

Cause Civil Judge (S.D.) Ballia Rajeshwar etc. versus Dr. Ganesh Prasad

on date 15-03-07 which was dismissed without examination after filing of

the above case. By dismissal of the suit Def. No. 1 does not get any legal

right nor can he get the above suit dismissed, the above suit is not barred

by principles of res judicata by order of dismissal of the said suit 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 the Plaintiffs", the words "father

of Def. No. I" may be added and in the same line after the words “father”

and before the words “mortgage” the words "Late Harihar Prasad" may

be added.

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 the following words may be

added-

“and nor can be. Since the Plaintiffs aforesaid case which relates to

Landlord and owner dispute regarding the disputed room and ownership

right of the said disputed room did not get transferred on the basis of the

said possessory mortgage in favour of Def. No. 1's father or Def. No. 1

rather in respect of the disputed room of the tenancy rights between the

Plaintiffs and Def. No.1. The ownership right and Landlordship right

remain in existence which Defendant has denied in the written statement

filed by him in the case mentioned above and written statement filed in the

case Small Cause Case No. 3/07 mentioned above. In such circumstances

from the disputed room described below on the basis of Def. No. 1's claim

of ownership rights and possession the tenancy right of Def. No. 1 has

automatically ceased, and through notice also tenancy has been

terminated and Def. No. 1 has by inducting Defendants Second Party as

sub-tenant misused his right, on the basis of which also the Defendants

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are liable to be evicted, for which the desired relief is being claimed in

this 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 of possessory

mortgage dated 12-02-57 shown by the Def. No. 1 its copy was obtained

on date 10.09.2008 and on getting correct information about the

document of mortgage deed then to avoid any legal complication to pay

by hand the amount 700/- Rupees mentioned in the mortgage deed and

other expenses 5100/- Rupees total 5800/- rupees and to take the original

document visited the Def. No. 1 many times when on date 31-03-09 he

finally refused to take the said amount or any other amount or to return

the possessory mortgage deed dated 12-02-57, therefore in the aforesaid

case only claim for discharge of mortgage is being made and in the

aforesaid case only separate application for deposit of 5800/- Rupees

amount under Section 83 of Transfer of Property Act is being given and in

respect of the said amount deposited in the Court for sending notice to

Def. No. 1 and after deposit of original document in the Court to

authorize receipt of the said deposited amount 5800/- Rupees prayer has

been made which is also under consideration.

Para-9(b) That in the end of the plaint the description of the room only

1/3 portion has been mortgaged by Plaintiffs' father Harihar Prasad in

favour of Def. No. 1's father Gulab Chand on date 12-02-57 rent of entire

room 700/- Rupees in lieu of interest of principal debt after deducting has

been mentioned in the possessory mortgage deed. In this manner apart

from 700/- Rupees principal amount no other amount remains payable to

father of Def. No. 1 but as abundant precaution for deposit of 700/- +

5100/- Rs. 5800/- Rs. amount under section 83 of Transfer of Property

Act in the Court application is being given.

Para 9(c) That late Harihar Prasad son of the Plaintiffs remained

mortgagor of 1/3 portion of the disputed tenanted room described below

in the plaint after whose death the Plaintiffs are the legal representatives

of the mortgagor whose mortgagee father of Def. No. 1 after whose death

Def. No. 1 is the legal representative of the mortgagor. Particulars of the

said document are as below:-

Ka-Date of Mortgage Deed Date 12-02-57 whose Registration

was done in Register No. 1 Volume

No. 1364 Page 309 to 311 at No.

364 on 13-02-57

Kha-Names of Mortgagee

and Mortgagor

Harihar Prasad son of late Sitaram

Prasad, mortgagee Gulab Chand

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son of Laxman Prasad, Mortgagor

4a. Type of Document

Gha. Security amount

ga-Rate of interest and

condition of Possessory

Mortgage Deed

Possessory Mortgage

700/- (Seven hundred Rupees)

Neither would there be claim of rent

and in whichever year on Jethsudi

Purnawan principal amount without

interest would be paid and

discharged then this the executor

will have no concern with this

document and the room. If there is

any hindrance in possession of the

Mortgagee then from the date of

dispossession at the rate of 1/-

Rupees per hundred monthly till the

date of payment the mortgagor and

his heirs would be responsible to

pay

Cha-Property under

mortgage

1/3 (one third) share in one room

Block No. 2-5 in A. No. 25, 26, 27,

28, 29 in City Ballia, Chowk

Paragana and District Ballia

Boundary-

East-Road Government

West-Room of Plaintiffs

North-Room of Plaintiffs

South-Katra Lane

9(d) That the Def. No. 1 on the basis of the said document mortgage deed

after his father's death the 1/3 portion of the tenanted room in dispute is in

possession of the mortgagor and in respect of 1/3 portion of mortgaged

room in possession of Def. No. l during the limitation period no notice was

given by father of Def. No. 1 or Def. No. 1 as mortgagor for payment of

amount 700/- to the Plaintiffs' father or the Plaintiffs nor was any such

notice served nor was any claim for recovery of the said amount ever made

by Def. No. 1's father or Def. No. 1 nor was any suit for foreclosure or sale

of possessory mortgage ever filed m respect of 1/3 portion of the tenanted

room in respect of ownership and possessory rights thereof, therefore the

Plaintiffs' right of discharge of 1/3 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 the words

"refused" and "left with no choice", words "2/3 portion of the disputed

tenanted room which was not mortgaged and only 1/3 portion of the

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disputed room remained mortgaged in the possessory mortgage and in

respect of that 1/3 portion relation between mortgagor and mortgagee

continued and Def. No. 1 denied the Plaintiffs; title of the entire room and

has claimed ownership of ground below the disputed tenanted room which

is three storeyed therefore suit for eviction from the disputed room of Def.

No. 1 and his sub-tenants Defendants Second party" may be added.

13. That in the plaint after second line of para-11 after the words

"mortgage deed" and before the word " mauja" the following words may

be added-

"And by refusing to return mortgage deed document and taking mortgage

amount of 1/3 portion of room amount 700/ Rs. or amount 5800 and

releasing 1/3 portion of the room and by denying Plaintiffs' ownership

right over disputed room described 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. and by

denial in written statement filed against aforesaid plaint".

14. That the words in Para 12 of the plaint may be cut and the following

words may be added-

"That value of the suit since mortgage deed amount in respect of 1/3

portion of the disputed tenanted room is 700/- and other expenses amount

5100/- total amount 5800/- Rs. paid as abundant caution for discharge

and possession of the mortgaged room 1/3 for prayer (a) is being fixed

and on the basis of denial of ownership right and possession of owner

Plaintiffs in the filed suit for dispossession prayer (A-1) valuation amount

at the rate Rs. 300/- Rs. monthly twelve times amount 3600/- Rupees is

being fixed. In this manner total value amount 5800 +amount 3600 = Rs.

9400/- on which Court fees is payable.

15. That in the plaint after para 12 and before the prayer before the words

"Plaintiffs" "Para 13" may be written.

16. That in the plaint present prayer (a) may be cut and in its place the

following prayer as prayer "(a)" and "(aa) as follows may be added-

"(a) That by the Court decree may be passed for discharge of registered

possessory mortgage deed dated 12.02.57 described below in the plaint

may be passed to the effect that the security amount 700/- mentioned in

the possessory mortgage deed and other expenses amount 5100/- total

amount 5800/- deposited by the Plaintiff in the Court may be informed to

Def. No. 1 and original document possessory mortgage described in Para

9 (c) of the plaint may be deposited in the Court by Def. No. 1 and. Def.

No. 1 may be authorized to take the said amount and decree for discharge

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of possessory mortgage may be passed in favour of Plaintiffs and against

the Def. No. 1 and in the event of failure by the Court the document

mortgage deed dated 12.02.57 in below para 9(c) of plaint may be

discharged and possession of portion of the disputed tenanted room may

be given to the Plaintiffs and the original possessory mortgage deed dated

12.02.57 may be deposited in the Court and Def. No. 1 may be authorized

to take the said deposited amount a decree may be passed.

(A-1) That a decree for possession of the Plaintiffs over the disputed

tenanted room described below in the plaint and dispossession of the

Defendants may be passed by the Court and Defendants may be ordered

to remove the tenanted room described below from their possession under

inspection of the Court and give possession thereof to the Plaintiffs and in

the event of failure execution of the decree may be done through an officer

of the Court/Advocate Commissioner a decree may be passed in favour of

the Plaintiffs and against the Defendants.

17. That below the words "description" below the Prayer in the plaint and

above the boundary entire words may be cut and in its place the following

words may be added-

“One room in Block No. 2-5 A. No. 25, 26, 27, 28, 29 in City Ballia

Chowk, Paragana, Ballia, whose 1/3 portion only is mortgaged in the

document mortgage deed 2/3 portion is not mortgaged and the entire

room given in the boundary is disputed”

16.The aforesaid amendment as prayed for by the Plaintiffs was opposed by the

Defendant by filing his reply.

17.The Civil Judge vide order dated 20.05.2013, declined to allow the amendment

as prayed for by the Plaintiffs and accordingly, rejected the application.

18.The Plaintiffs challenged the aforesaid order passed by the learned Civil Judge

by filing a civil revision application in the Court of the Additional District Judge,

Ballia. The District Court vide order dated 25.02.2015, allowed the revision

application and permitted the Plaintiffs to amend the plaint, as prayed for. However,

as the amendment application was filed after 3 years from the date of the institution of

the suit, the revisional court thought fit to impose costs of Rs. 3,000/- upon the

Plaintiffs.

19.The Defendant being dissatisfied with the order passed by the Additional

District Judge allowing the revision application filed by the Plaintiffs as aforesaid,

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challenged the said order before the High Court by filing a petition under Article 227

of the Constitution. The High Court declined to interfere with the order passed by the

District Court in exercise of its supervisory jurisdiction and accordingly, rejected the

application filed by the Defendant herein vide order dated 04.07.2018.

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

“Sri Chandra Bhan Gupta, learned counsel for the defendant petitioner

submits that the plaintiff-respondents filed the suit in question alleging that

suit property was mortgaged and possession of the same may be given to

them. By the amendment application the plaintiff-respondents claim

deletion of Section 83 of the suit and also set up the claim of possession

with the defendant-petitioner. The amendment application was rejected by

the trial court on 20.5.2013 on the ground that it changes the nature of the

suit. Aggrieved with the aforesaid order, the plaintiffs-respondents filed the

civil revision and the same has been allowed on 22.2.2015. He further

makes submission that the entire nature of the suit has been changed by the

amendment application and as such, this Court should come for rescue and

reprieve the petitioner.

On the other hand, Sri Rajesh Kumar, learned counsel for the plaintiff-

respondents states that the present writ petition was filed in the year 2015

in which an interim order was passed on 10.4.2015 staying the operation of

the revisional order dated 25.2.2015. The matter is pending since the year

2015 and the suit itself is also pending since the year 2009. On account of

the aforesaid interim order, the matter is pending consideration before the

trial court. There was no infirmity or illegality in the revisional order and

the writ petition is liable to be dismissed.

The Court has proceeded to examine the record in question and also

perused the revisional order and finds that after considering the entire facts

and circumstances of the case, the revisional court was of the view that the

amendment does not change the nature of the suit and no injustice should

be done on the fault of the advocate. Finally, he has allowed the civil

revision in question and set aside the order of the trial court dated

20.5.2013. He has also allowed the amendment application 35- Ka with

cost of Rs. 3000/-.

The Court does not find any infirmity or illegality in the order of the

revisional court and the same is approved. However, for substantial justice,

the amendment application ought to have been allowed with cost of Rs.

5000/- and the same is accepted by the parties. In case, the plaintiff-

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respondents deposit Rs. 5000/- within three weeks from today, the trial

court will proceed in the matter and finalise the proceeding in accordance

with law without affording any unnecessary adjournment to the parties.”

21.In view of the aforesaid, the Defendant is here before this Court with the present

appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT-DEFENDANT

22.Mr. Rajeev M. Roy, the learned counsel appearing for the Appellant Defendant,

vehemently, submitted that the High Court committed a serious error in passing the

impugned order. The principal argument of the learned counsel is that the impugned

order of the High Court is a non-speaking order. No reasons have been assigned in the

impugned order.

23.The learned counsel further submitted that the High Court failed to appreciate an

important question of law that the amendment has changed the entire nature of the suit.

He would submit that when the first suit was filed in the Small Causes Court, the

Defendant was shown to be a tenant in arrears of rent and it was further alleged that the

Defendant had inducted sub-tenants in the suit property. The learned counsel would

argue that after the dismissal of the suit filed in the Small Causes Court for non-

prosecution, the Plaintiffs filed a fresh suit in the Civil Court labelling it as one under

Section 83 of the TP Act. Later, the Plaintiffs by way of amendment could not have said

that the suit is not under Section 83 of the TP Act but the tenancy of the Defendant be

terminated and he be directed to hand over the possession of the shop. In other words, it

is argued that the Plaintiffs could not have reintroduced the case of the tenancy and pray

for a decree of possession.

24.The learned counsel vehemently submitted that even while permitting the

Plaintiffs to ament the suit, the courts below ought to have kept the provisions of Order

IX Rule 9 of the CPC in mind, as the Suit No. 154 of 2009 is not maintainable on the

same cause of action. In other words, by way of proposed amendment, the Plaintiffs are

trying to reintroduce the cause of action pleaded in the previous suit which stood

dismissed for non-prosecution. This according to the learned counsel is not permissible

in law.

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25.It was further argued that as the suit is one for possession of the property in

question, the same could have been instituted only in the Small Causes Court and not

before the Civil Court.

26.The learned counsel placed strong reliance on the decision of this Court in the

context of Revajeetu Builders and Developers v. Narayanaswamy & Sons and Others

reported in (2009) 10 SCC 84, to submit that when the proposed amendment

constitutionally or fundamentally changes the nature and character of the case then the

court should not permit the plaintiffs to amend the plaint.

27.In such circumstances referred to above, the learned counsel appearing for the

Appellant Defendant prays that there being merit in his appeal, the same may be

allowed and the impugned order be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT-PLAINTIFFS

28.On the other hand, this appeal has been, vehemently opposed on behalf of the

Original Plaintiffs submitting that no error not to speak of any error of law could be said

to have been committed by the High Court while passing the impugned order. The

learned counsel would submit that the High Court rightly declined to interfere with the

order passed by the District Court permitting the Plaintiffs to amend the plaint in

exercise of its supervisory jurisdiction under Article 227 of the Constitution.

29.According to the learned counsel appearing for the Plaintiffs, the provisions of

Order IX Rule 9 of the CPC have no application to the facts of the present case. He

would submit that for the applicability of Order IX Rule 9 of the CPC, the cause of

action in the second suit should be the same. However, the cause of action in both the

suits are different.

30.The learned counsel further submitted that the issue of Order IX Rule 9 of the

CPC has nothing to do with the question of whether the Plaintiff should be permitted to

amend the plaint under the provisions of Order VI Rule 17 of the CPC.

31.In such circumstances referred to above, the learned counsel prays that there

being no merit in the present appeal the same may be dismissed.

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ANALYSIS

32.Having heard the learned counsel appearing for the parties and having gone

through the materials on record the only question that falls for our consideration is

whether the High Court committed any error in passing the impugned order.

33.There cannot be any doubt or dispute that the courts should be liberal in allowing

applications for leave to amend pleadings but it is also well settled that the courts must

bear in mind the statutory limitations brought about by reason of the Code of Civil

Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of

them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported

in (2008) 8 SCC 511, the law has been laid down by this Court in the following terms:

(SCC p. 517, para 16)

“16. Insofar as the principles which govern the question of granting or

disallowing amendments under Order 6 Rule 17 CPC (as it stood at the

relevant time) are concerned, these are also well settled. Order 6 Rule 17

CPC postulates amendment of pleadings at any stage of the

proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda

Patil [AIR 1957 SC 363] which still holds the field, it was held that all

amendments ought to be allowed which satisfy the two conditions: (a) of

not working injustice to the other side, and (b) of being necessary for the

purpose of determining the real questions in controversy between the

parties. Amendments should be refused only where the other party cannot

be placed in the same position as if the pleading had been originally

correct, but the amendment would cause him an injury which could not be

compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar

Mohanlal Kalwar [(1990) 1 SCC 166].)”

34.In the case of P.A. Jayalakshmi v. H. Saradha and Others reported in (2009) 14

SCC 525, the above observations were reiterated by this Court and in the light of the

same, this Court in para 9 held as under:

“9. By reason of the Code of Civil Procedure (Amendment) Act, 1976,

measures have been taken for early disposal of the suits. In furtherance of

the aforementioned parliamentary object, further amendments were

carried out in the years 1999 and 2002. With a view to put an end to the

15

practice of filing applications for amendments of pleadings belatedly, a

proviso was added to Order 6 Rule 17 which reads as under:

“17. Amendment of pleadings.—The court may at any stage of the

proceedings allow either party to alter or amend his pleading in

such manner and on such terms as may be just, and all such

amendments shall be made as may be necessary for the purpose of

determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after

the trial has commenced, unless the court comes to the conclusion

that in spite of due diligence, the party could not have raised the

matter before the commencement of trial.””

35. In B.K. Narayana Pillai v. Parameswaran Pillai and Another reported in

(2000) 1 SCC 712, this Court referred to the following passage from A.K. Gupta and

Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was

held as follows:-

“4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR

1967 SC 96 : (1966) 1 SCR 796] held:

“The general rule, no doubt, is that a party is not allowed by

amendment to set up a new case or a new cause of action particularly

when a suit on new case or cause of action is

barred: Weldon v. Neal [(1887) 19 QBD 394 : 56 LJ QB 621]. But it is

also well recognised that where the amendment does not constitute the

addition of a new cause of action or raise a different case, but amounts

to no more than a different or additional approach to the same facts,

the amendment will be allowed even after the expiry of the statutory

period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50 :

ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and

Co. [AIR 1957 SC 357 : 1957 SCR 438]

The principal reasons that have led to the rule last mentioned are, first,

that the object of courts and rules of procedure is to decide the rights of

the parties and not to punish 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 of

limitation when what is sought to be brought in by the amendment can

be said in substance to be already in the pleading sought to be

amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR

(1909) 33 Bom 644 : 11 Bom LR 1042] approved in Pirgonda

16

Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957

SCR 595] ).

The expression ‘cause of action’ in the present context does not mean

‘every fact which it is material to be proved to entitle the plaintiff to

succeed’ as was said in Cooke v. Gill [(1873) 8 CP 107 : 42 LJCP 98 :

28 LT 32] in a different context, for if it were so, no material fact could

ever be amended or added and, of course, no one would want to change

or add an immaterial allegation by amendment. That expression for the

present purpose only means, a new claim made on a new basis

constituted by new facts. Such a view was taken in Robinson v. Unicos

Property Corpn. Ltd. [(1962) 2 All ER 24 (CA)] and it seems to us to be

the only possible view to take. Any other view would make the rule

futile. The words ‘new case’ have been understood to mean ‘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 a reasonable view to take. No amendment

will be allowed to introduce a new set of ideas to the prejudice of any

right acquired by any party by lapse of time.”

Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held:

(SCC p. 399, para 22)

“The power to allow an amendment is undoubtedly wide and may at

any stage be appropriately exercised in the interest of justice, the law of

limitation notwithstanding. But the exercise of such far-reaching

discretionary powers is governed by judicial considerations and wider

the discretion, greater ought to be the care and circumspection on the

part of the court.”

In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held: (SCC

p. 93, para 4)

“4. It is clear from the foregoing summary of the main rules of

pleadings that provisions for the amendment of pleadings, subject to

such terms as to costs and giving of all parties concerned necessary

opportunities to meet exact situations resulting from amendments, are

intended for promoting the ends of justice and not for defeating them.

Even if a party or its counsel is inefficient in setting out its case initially

the shortcoming can certainly be removed generally by appropriate

steps taken by a party which must no doubt pay costs for the

inconvenience or expense caused to the other side from its omissions.

The error is not incapable of being rectified so long as remedial steps

do not unjustifiably injure rights accrued.”……”

17

36.In one of the recent pronouncements of this Court, in the case of Life Insurance

Corporation of India v. Sanjeev Builders Private Limited and Another, Civil Appeal

No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:

“70. ….. (ii) All amendments are to be allowed which are necessary for

determining the real question in controversy provided it does not cause

injustice or prejudice to the other side. This is mandatory, as is apparent

from the use of the word “shall”, in the latter part of Order VI Rule 17 of

the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication

of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek

to withdraw any clear admission made by the party which confers a

right on the other side and

(c) the amendment does not raise a time barred claim, resulting in

divesting of the other side of a valuable accrued right (in certain

situations).

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

(i) by the amendment, a time barred claim is sought to be introduced,

in which case the fact that the claim would be time 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, the court should

avoid a hypertechnical approach, and is ordinarily required to be liberal

especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly

consider the dispute and would aid in rendering a more satisfactory

decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a

new approach without introducing a time barred cause of action, the

amendment is liable to be allowed even after expiry of limitation.

18

(viii) Amendment may be justifiably allowed where it is intended to rectify

the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow

the prayer. Where the aspect of delay is arguable, the prayer for

amendment could be allowed and the issue of limitation framed separately

for decision.

(x) Where the amendment changes the nature of the suit or the cause of

action, so as to set up an entirely new case, foreign to the case set up in

the plaint, the amendment must be disallowed. Where, however, the

amendment sought is only with respect to the relief in the plaint, and is

predicated on facts which are already pleaded in the plaint, ordinarily the

amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the

court is required to be liberal in its approach. The court is required to

bear in mind the fact that the opposite party would have a chance to meet

the case set up in amendment. As such, where the amendment does not

result in irreparable prejudice to the opposite party, or divest the opposite

party of an advantage which it had secured as a result of an admission by

the party seeking amendment, the amendment is required to be allowed.

Equally, where the amendment is necessary for the court to effectively

adjudicate on the main issues in controversy between the parties, the

amendment should be allowed. (See Vijay Gupta v. Gagninder Kr.

Gandhi & Ors., 2022 SCC OnLine Del 1897)”

37.Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written

statement or file an additional written statement. It is, however, subject to an exception

that by the proposed amendment, an opposite party should not be subject to injustice

and that any admission made in favour of the other party is not but wrong. All

amendments of the pleadings should be allowed liberally which are necessary for

determination of the real controversies in the suit provided that the proposed

amendment does not alter or substitute a new cause of action on the basis of which the

original lis was raised or defence taken.

38. Inconsistent and contradictory allegations in negation to the admitted position of

facts or mutually destructive allegations of facts should not be allowed to be

incorporated by means of amendment to the pleadings.

39.In the case on hand, the first suit filed in the Small Causes Court was on the

premise that the Defendant as a tenant was in arrears of rent and had unlawfully

19

inducted sub-tenants in the tenanted premises. Thus, the Plaintiffs put forward a case,

as if, there was a landlord tenant relationship between the parties. The said suit came to

be dismissed for non-prosecution. Later in point of time, the present suit came to be

filed in the Civil Court with the prayer that the Plaintiffs be permitted to redeem the

mortgage and take back the possession of the suit property.

40.It appears that the present suit in which the courts below permitted the Plaintiffs

to amend the plaint is based on the stance taken by the Defendant in his written

statement filed in the first suit i.e., the Small Cause Case No. 3 of 2007, which came to

be dismissed for non-prosecution. However, it appears that the Plaintiffs have not

given up their case that the Defendant is a tenant in the suit property and has inducted

sub-tenants. It is also the case of the Plaintiffs that the Defendant is in arrears of rent.

Thus, the stance of the Plaintiffs in the present suit is 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, this Court found it

extremely difficult to understand what the Plaintiffs intend to say by way of the

amendment. With lot of effort, ultimately what we have been able to understand is that

the father of the Appellant Defendant, namely, late Gulab Chand was the mortgagee of

the suit property. The father of the Plaintiffs, namely, late Harihar Prasad was the

mortgagor and he executed a mortgage deed dated 12.02.1957 in favour of the father of

the Appellant Defendant for a sum of Rs. 700/-. The grandfather of the Appellant

Defendant, namely, late Laxman Prasad remained in occupation of the suit property as a

tenant from the year 1953 at the rate of Rs. 23 monthly rent and later the father of the

Appellant Defendant occupied the suit property, as a tenant till the year 2005 i.e., the

year of his demise. Thereafter, the Appellant Defendant became the tenant of the suit

property. What is sought to be conveyed by the Appellant Defendant is that the

grandfather and father of the Plaintiffs were tenants in the suit property and a mortgage

deed was also drawn and executed in the year 1957 with respect to the same property. It

is also the case of the Plaintiffs that the Appellant Defendant has inducted sub-tenants in

the suit property.

42.A three-Judge Bench of this Court in the case of Firm Sriniwas Ram Kumar v.

Mahabir Prasad and Others reported in AIR 1951 SC 177, has held that a party is

20

entitled to take alternative pleas in support of its case. Where alternative pleas arose to

some extent from the admitted position of the defendant, such plea is not impermissible

merely because it is inconsistent with the other plea. It held that a plaintiff may rely

upon different rights alternatively and there is nothing in the CPC to prevent a party

from making two or more inconsistent sets of allegations claiming relief therein in the

alternative. It further observed that although, a Court should not grant relief to a

plaintiff in a case in which there is no foundation in a pleading on which the other side

was not called upon or had opportunity to meet yet when the alternative case which, the

plaintiff could have made was not only admitted by defendant in his written statement

but was expressly put forward as an answer to the claim which the plaintiff made in the

suit, there would be nothing improper in giving the plaintiff a decree upon the case

which the defendant himself makes.

43.The view that a plaintiff is entitled to plead even inconsistent pleas while seeking

alternative reliefs was reiterated by this Court in G. Nagamma and Another v.

Siromanamma and Another reported in (1996) 2 SCC 25. In that case, a suit for

specific performance of an agreement of re-conveyance was filed by the appellants.

Later, an application for amendment of the plaint was sought stating that the

transactions of execution of sale deed and obtaining a document for re-conveyance

came to be a single transaction, i.e., it was a mortgage by conditional sale. So,

alternatively plaintiff sought relief to redeem the mortgage. The trial court and the High

Court rejected the same on the ground that the suit was filed for specific performance

and that the amendment would change the nature of the suit as well as the cause of

action. But this Court reversed the said decision and held that since the plaintiff therein

was seeking alternative reliefs, he is entitled to plead even inconsistent pleas and that

the amendment of the plaint would neither change the cause of action nor would affect

the relief.

44. In Praful Manohar Rele v. Krishnabai Narayan Ghosalkar and Others

reported in (2014) 11 SCC 316, this Court followed the decision in Firm Sriniwas Ram

Kumar (supra) and reiterated the principle that alternative and inconsistent pleas can be

taken by a plaintiff. In that case, the plaintiff therein had alleged that the defendant

21

therein and his legal representatives were occupying the suit premises as gratuitous

licensees and upon termination of such licence, the plaintiff was entitled to a decree for

possession. The trial court found that defendants were tenants and not licensees as

alleged by the plaintiff. The 1

st

Appellate Court recorded a finding to the contrary, held

that the defendants were let into the suit property by plaintiff on humanitarian grounds

and as gratuitous licensees and the license was validly terminated by plaintiff. It thus,

negatived the defence of the defendants that they were tenants. In the plaint itself, the

plaintiff therein had taken an alternative plea that he was entitled to vacant possession

of the premises on the ground of bona fide personal need, nuisance, annoyance and

damage allegedly caused to the premises and to the adjoining garden land belonging to

him by the defendants. This Court held that the alternative plea of plaintiff and the

defence set up by defendants was no different from each other. The Court held that it

was open to the plaintiff not only to take a plea of license but also to alternatively plead

tenancy in support of his plea for relief of recovery of possession. The Court held that

defendants therein had specifically admitted that the property belongs to plaintiff and

that they were in occupation thereof as tenants, and an issue was also framed whether

defendants were in occupation as license or as tenants, and defendants had full

opportunity to prove their respective cases. So, the defendants cannot be said to have

been taken by surprise by the alternative case pleaded by plaintiff nor could any

injustice would result to them from the alternative plea being allowed and tried by the

Court. It observed that even if the alternative plea had not been allowed to be raised in

the suit filed by appellant, he would have been certainly entitled to raise that plea and

seek eviction in a separate suit filed on the very same grounds.

45.In Revajeetu Builders (supra), cited by the learned counsel for the Appellant, a

two-Judge Bench of this Court had an occasion to deal with Order 6 Rule 17 C.P.C. In

that case, the judgment of this Court in Usha Balashaheb Swami and Others v. Kiran

Appaso Swami and Others reported in (2007) 5 SCC 602, was followed. It referred to

the 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 plaintiff seeks to alter the cause of

action itself and introduces it indirectly through amendment of his pleadings, an entirely

22

new or inconsistent cause of action, amounting virtually to the substitution of a new

plaint or a new cause of action in place of what was originally there, the Court will

refuse to permit it, if it amounts to depriving the party, against which a suit is pending,

of any right which may have accrued in its favour due to lapse of time.

46.In our considered opinion, the aforesaid observations also do not come to the aid

of the Appellant herein, inasmuch as, even in the judgment in Ganesh Trading Co.

(supra), it had not referred to the three-Judge Bench judgment of this Court in Firm

Sriniwas Ram Kumar (supra).

47.In the event, if the pleas sought to be introduced by plaintiff by way of an

amendment is also the plea, which the defendant has set up in his written statement and

such a plea of the plaintiff is an alternative plea, even though it is inconsistent with the

original plea, since there is no prejudice caused to the defendant, the Court is not

precluded from allowing the amendment.

48.At this stage, we may refer to rely upon the decision of this Court in the case of

State of Madhya Pradesh v. Union of India and Another reported in (2011) 12 SCC

268. We quote the relevant observations as contained in para 8 of the judgment: -

“8.The purpose and object of Order 6 Rule 17 of the Code is to allow

either party to alter or amend his pleadings in such manner and on such

terms as may be just. Amendment cannot be claimed as a matter of right

and under all circumstances, but the courts while deciding such prayers

should not adopt a hypertechnical approach. Liberal approach should be

the general rule, particularly in cases where the other side can be

compensated with costs. Normally, amendments are allowed in the

pleadings to avoid multiplicity of litigations.”

(Emphasis supplied)

49.The Appellant Defendant has also put forward an argument as regards the

applicability of Order IX Rule 9 of the CPC to make good his submission that the

amendment should not be permitted as the present suit by itself is not maintainable as

the earlier suit filed in the Small Causes Court came to be dismissed for non-prosecution

under the provisions of Order IX Rule 8 of the CPC.

23

50.We could have at this stage closed the matter saying that if it is the case of the

Appellant Defendant that the present suit is not maintainable in view of Order IX Rule 9

of the CPC, then it shall be open for him to raise such a plea before the trial court by

filing an application under Order VII Rule 11 for rejection of plaint. However, we are

of the view that as an important question of procedural law has been raised, we take this

opportunity of explaining in this appeal itself as to 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 plaintiff shall be precluded

from bringing the fresh suit in respect of the same cause of action. But he

may apply for an order to set the dismissal aside, and if he satisfies the

Court that there was sufficient cause for his non-appearance when the suit

was called on for hearing, the Court shall make an order setting aside the

dismissal upon such terms as to cost or otherwise as it thinks fit, and shall

appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application

has been served on the opposite party.”

52.Order IX Rule 9 bars fresh suit in respect of the same cause of action in case the

earlier suit was dismissed as indicated in Order IX Rule 8 of the CPC. The term “same

cause of action” assumes significance in as much as the bar under Order IX Rule 8 of

the CPC applies to a later suit only in respect of the very same cause of action. In case

the cause of action in the later suit was altogether different, which has nothing to do

with the cause of action in the earlier suit, the statutory bar has no application to such

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 such a provision has been introduced. It was not the intention of the

Legislature to bar the subsequent suits between the parties and the same was evident by

the qualifying words, “same cause of action”. Therefore, everything depends upon the

cause of action and in case the subsequent cause of action arose from a totally different

bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX

Rule 9 of CPC.

24

53. This Court in The Gaya Municipality v. Ram Prasad Bhatt and 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 action in two suits are

different or not were laid down by the Privy Council in Mohammad Khalil

Khan v. Mahbub Ali Khan A.I.R. (1949) P.C. 78 and referred to with

approval by this Court in Suraj Rattan Thirani v. Azamabad Tea Company

A.I.R. (1965) S.C. 295. The only question is whether applying these

principles the High Court was right in holding that the cause of action

was different in the present suit from that in the 1941 suit. It seems to us

that if the two plaints are analysed closely it would appear that in the first

suit the cause of complaint was a threat by the defendant municipality to

interfere with the alleged rights of the plaintiff by constructing stalls

immediately to the south of his house. At that time no stalls had been

constructed and the alleged rights of the plaintiff had not been actually

infringed. During the course of the suit the construction of the stalls was

commenced, and the same was completed, at some appreciable distance

from the house of the plaintiff, after the suit was dismissed for default.

Further the complaint in the 1941 suit was that the right to use the

footpath just south of the municipal drain was being infringed which

footpath was alleged to have been used by pedestrians and customers of

the shop of the plaintiff; there was no allegation that his right to access to

Halliday Road was being threatened or infringed. In the present suit what

is substantially alleged is that the plaintiff had a right to access to the

house from all sides of the said plot No. 11459 in question abutting and

lying in front of the plaintiff’s house. It will also be noticed that the

present plaint alleges a permanent deprivation of plaintiff's alleged right

of access to Halliday Road. The constructions are of a permanent nature,

and, in our view, a fresh cause of action arose when the 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 in Jay Cook v. Henry S. Gill reported in

(1873) LR 8 CP 107 as under:

“‘Cause of action’ has been held from the earliest time to mean every fact

which is material to be proved to entitle the plaintiff to succeed, — every

fact which the defendant would have a right to traverse.”

55.Lord Justice Fry put it in the negative by saying, “Everything which, if not

proved, gives the defendant an immediate right to judgment, must be part of the cause

25

of action.” This definition is the basis of all subsequent decisions containing an

interpretation of the expression ‘cause of action.’ It was accepted in Deep Narain

Singh v. Minnie 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 action in a suit has no

reference to the defence taken in the suit, nor is it related to the evidence by which that

cause of action is established. In Mohammad Khalil Khan (supra) to which, we have

referred above, this point is made in the judgment of the Privy Council in para 61, point

No. (5), as follows:—

“The cause of action has no relation whatever to the defence that may be

set up by the defendant nor does it depend upon the character of the relief

prayed for by the plaintiff. It refers … to the media upon which the

plaintiff asks the Court to arrive 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 or corresponding obligation is effectuated and by

which a wrong is redressed and relief obtained. The one precedes and gives rise to the

other, but they are separate and distinct from each other and are governed by different

rules and principles. The cause of action is the obligation from which 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 not done or that which ought not to have been done is

done. The essential elements of a cause of action are thus the existence of a legal right

in the plaintiff with a corresponding legal duty in the defendant, and a violation or

breach of that ‘right or duty’ with consequential injury or damage to the plaintiff for

which he may maintain an action for appropriate relief or reliefs. The right to maintain

an action depends upon the existence of a cause of action which Involves a combination

of a right on the part of the plaintiff and the violation of such right by the defendant. The

duty on the part of the defendant may arise from a contract or may be imposed by

positive law independent of contract, it may arise of contractus or ex delicto. A cause of

action arises from the invasion of the plaintiff's right by violation of some duty Imposed

upon the defendant in favour of the plaintiff either by voluntary contract or by positive

26

law. (See: Sardar Balbir Singh v. Atma Ram Srivastava reported in AIR 1977 ALL 211

(FB))

58.Secondly, the cause of action must be distinguished from the evidence upon

which, that cause of action is proved and though the one has no relation to the other,

still the nature of the cause of action may be indicated by the nature of the evidence by

which it is supported. This again is made clear in Mohammad Khalil Khan

(supra) para. 61 at P. 86 in points Nos. 3 and 4, which are put as follows:—

“(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 to be the same

if in substance they are identical. …”

59.The decision of the Privy Council in Mohammad Khalil Khan (supra) was

taken notice of by this Court in the case of Suraj Rattan Thirani and Others v.

Azamabad Tea Co. Ltd. and Others reported in AIR 1965 SC 295. This Court, while

explaining the true purport of Order IX Rule 9 of the CPC observed in paras 29 & 30

resply as under:-

“28. A cause of action is a bundle of facts on the basis of which relief is

claimed. If in addition to the facts alleged in the first suit, further facts are

alleged and relief sought on their basis also, and he explained the

additional facts to be the allegations about possession and dispossession

in October 1934, then the position in law was that the entire complexion

of the suit is changed with the result that the words of Order 9 Rule 9 “in

respect of the same cause of action” are not satisfied and the plaintiff is

entitled to reagitate the entire cause of action in the second suit. In

support of this submission, learned counsel invited our attention to certain

observation in a few decision to which we do not consider it necessary to

refer as we do not see any substance in the argument.

29. We consider that the test adopted by the Judicial Committee for

determining the identity of the causes of action in two suits in Mohammed

Khalil Khan v. Mahbub Ali Mian [75 IA 121] is sound and expresses

correctly the proper interpretation of the provision. In that case Sir

Madhavan Nair, after an exhaustive discussion of the meaning of the

expression “same cause of action” which occurs in a similar context in

para (1) of Order 2 Rule 2 of the Civil Procedure Code observed:

27

“In considering whether the cause of action in the subsequent suit is

the same or not, as the cause of action in the previous suit, the test to be

applied is/are the causes of action in the two suits in substance — not

technically — identical?””

60.Thus, we may sum it up saying that Order IX Rule 9 of the CPC provides that

when the suit is wholly or partially dismissed under Rule 8 (dismissed for default) the

Plaintiffs shall be precluded from bringing in a fresh suit, 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 the alternative is that the

Defendant is in possession of the suit property as a mortgagee and they are ready to

redeem the mortgage by making the necessary payment of the mortgaged amount and

take back the possession. Whether the relief prayed for is time barred or not is for the

trial court to decide on the basis of the evidence that the parties may lead. As observed

by the Privy Council in Mohammad Khalil Khan (supra) if the evidence to support the

two claims is different than the causes of action are also different. Hence, the contention

raised on the basis of the provisions of Order IX Rule 9 of the CPC has no merits.

61.The matter may also be looked at from a different angle. Let us assume for the

moment that in the first suit also the plaintiffs had prayed for a relief, seeking

redemption of mortgage as prayed for in the present suit. Even in such circumstances,

whether with both the reliefs identical in the two suits and the cause of action also the

same, the provisions of Order IX Rule 9 of the CPC would operate as a bar for the

maintainability of the present suit. The right to redeem, is a right conferred upon the

mortgagor by an enactment, of which he can only be deprived by means and in manner

indicated for that purpose and strictly complied with. In Shridhar Sadba

Powar v. Ganu Mahadu Kavade and others reported in ILR (1928) 52 Bom 111, a suit

for redemption was filed but was dismissed under Order IX, Rule 8, of the CPC. The

mortgagor brought a second suit for redemption and it was contended that it was barred

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 of the Bombay High Court

including Ramachandra Kolaji Patil v. Hanmantha reported in ILR (1920) 44 Bom

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939, and pointed out that the decision of the Privy Council in Thakur Shankar Baksh

v. Dya Shankar and Others reported in (1887) LR 15 IA 66, was not against the view

taken by them, as it was decided on a different state of law. In Vithal Rajaram Sutar

and another v. Ramchandra Pandu Jadhav and others reported in AIR 1948 Bom 226,

a Full Bench of the Bombay High Court held that the general terms of Order XXII Rule

9 of the CPC, which provided that where a suit abated or was dismissed under the

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 was pointed out that the CPC dealt with

the procedure relating to all suits. There was a special law which dealt with the rights of

mortgagors and mortgagees and that substantive law was to be found in the Transfer of

Property Act. That substantive law provided only two ways in which the right of

redemption can be extinguished and they were: (i) by act of the parties, or (ii) by decree

of the court. The right of redemption is an incident of a subsisting mortgage and it

subsists so long as the mortgage itself subsists. As held by the Privy Council

in Bhaiya Raghunath Singh and others v. Musammat Hansraj Kunwar and

others reported in (1933-34) 61 IA 362, the right of redemption can be extinguished as

provided in Section 60 of the Transfer of Property Act and when it is alleged to have

been extinguished by a decree, the decree should run strictly in accordance with the

form prescribed for the purpose. Unless the equity of redemption is so extinguished, a

second suit for redemption by the mortgagor, if filed within the period of limitation, is

not therefore barred.

62.It follows, therefore, that if the right of redemption is not extinguished, the

provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a

second suit because as in a partition suit, the cause of action in a redemption suit is a

recurring one. The cause of action in each successive action, until the right of

redemption is extinguished or a suit for redemption is time barred, is a different one.

63.In the result, this appeal fails and is hereby dismissed.

64.The interim order passed by this Court dated 3.01.2019 staying the further

proceedings of Suit No. 154 of 2009 pending in the Court of Civil Judge (J.D.) Eastern,

District Ballia is hereby vacated.

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65.The trial court shall now proceed to take up the Suit No. 154 of 2009 for hearing

and dispose of the same at the earliest preferably within a period of six months from

today. It is clarified that it shall be open for both the sides to raise all legal contentions

available to them in law.

66.It is further clarified that we have not expressed any opinion in regard to the

merits of the civil suit. The civil suit shall be decided strictly on the basis of the

evidence that may be led by the parties in accordance with law.

67.We have confined our adjudication in the present appeal only on the limited

question whether the Plaintiffs should be permitted to amend the plaint and secondly,

whether the provisions of Order IX Rule 9 of the CPC are applicable to the case on

hand.

68.There shall be no order as to costs.

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

………………………………………..J.

(SUDHANSHU DHULIA)

………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

MARCH 14, 2023.

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