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.
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’). 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. 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.” 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. In the Plaintiff’s absence the suit is dismissed.” After the Small Cause Case No 3 of 2007 came to be dismissed as aforesaid, the Plaintiffs preferred another suit (i.e. 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.” In the Suit No 154 of 2009, the Defendant filed his written statement inter alia stating as under: “4. 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.
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. Thus this suit was finally decided against the Plaintiffs and in favour of me the Defendant. 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 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. ”
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. 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. 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 has by inducting Defendants Second Party as sub-tenant misused his right, on the basis of which also the Defendants are liable to be evicted, for which the desired relief is being claimed in this suit.” 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 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. 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 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 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. 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.
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. (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. 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 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. 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. 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.” In view of the aforesaid, the Defendant is here before this Court with the present appeal.
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. 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. 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. 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. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. 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.
Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was held as follows:- “ 4. [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. Kalgonda Shidgonda Patil
[AIR 1957 SC 363 : 1957 SCR 595] ).
[(1962) 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. [(1962) 1 All ER 303 (CA)]
This also seems to us to be a reasonable view to take.
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. (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. (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. 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.
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. 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. 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 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. 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. In that case, the plaintiff therein had alleged that the defendant 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. 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.
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 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. 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. 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. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 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. 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. 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. 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. 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.
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.” 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 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. It refers… to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” 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 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. … (4) The cause of action in the two suits may be considered to be the same if in substance they are identical. 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.
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 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: “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. 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.
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.
Case Title: GANESH PRASAD Vs. RAJESHWAR PRASAD (2023 INSC 228)
Case Number: C.A. No.-001699-001699 / 2023
