Code of Civil Procedure, 1908 – Or. VI, R.17 – Or. IX, R.8,9 – Respondent-plaintiff instituted a suit against the appellantdefendant for a declaration that respondents are the lawful owners of the suit property and decree of eviction on the ground of nonpayment of rent and creation of sub-tenancy – The appellantdefendant filed a written statement stating that the father of the respondent-plaintiff was mortgagor of the suit property who executed a mortgage deed in favour of father of appellantdefendant (mortgagee) and that is how his father was put in possession of the suit property and suit should fail as mortgage was not redeemed – Later on, the suit came to be dismissed for nonprosecution – Thereafter, respondents filed another suit for redemption of mortgage and possession of suit property – The respondent made an application for amendment of pleadings – Civil Judge rejected the aforesaid application – Respondent challenged the above order by filing revision application before the District Court, which in turn allowed the respondent to amend the plaint – Appellant challenged the said order before the High Court – High Court declined to interfere with the order – Appellant contended before 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 of action is same in both the suits – On appeal, held: If the pleas 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 – In the instant case, the case of plaintiffs as put up in 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 – It is settled that if the evidence to support the two claims is different than the causes of action are also different – The instant suit was not filed on same cause of action – Hence, the contention raised on basis of the provisions of Or.IX, R.9 of the CPC has no merits – Transfer of Property Act – ss. 60 and 83. Dismissing the appeal, the Court
HELD: 1. 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. 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. [Paras 37, 38][918-E-F]
2. 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. [Para 47][922-A-B]
3. 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. [Para 52][923-C-E]
4. 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 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. [Para 60][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 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. 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. [Paras 61, 62][927-E-F; 928-F]
Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others AIR 1951 SC 177 : [1951] SCR 277;
G. Nagamma and Another v. Siromanamma and Another (1996) 2 SCC 25 : [1995] 5 Suppl. SCR 701; Praful Manohar Rele v. Krishnabai Narayan Ghosalkar and Others (2014) 11 SCC 316 : [2014] 1 SCR 44; State of Madhya Pradesh v. Union of India and Another (2011)
12 SCC 268 : [2011] 12 SCR 140; Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another Civil Appeal No. 5909 of 2022 (decided by the Supreme Court of India) – relied on.
Revajeetu Builders and Developers v. Narayanaswamy & Sons and Others (2009) 10 SCC 84 : [2009] 15 SCR 103; North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (2008) 8 SCC 511 : [2008] 6 SCR 416; P. A. Jayalakshmi v. H. Saradha and Others (2009)
14 SCC 525 : [2009] 11 SCR 131; B. K. Narayana Pillai v. Parameswaran Pillai and Another (2000) 1 SCC
712 : [1999] 5 Suppl. SCR 271; A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation AIR 1967 SC 96 : [1966] SCR 796; Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others (2007) 5 SCC 602 : [2007] 5 SCR 306; M/s. Ganesh Trading Co. v. Moji Ram (1978) 2 SCC 91 : [1978] 2 SCR 614; Gaya
Municipality v. Ram Prasad Bhatt and Anr. in Civil Appeal No. 29 of 1965 (decided by the Supreme Court of India) – referred to.
Deep Narain Singh v. Minnie Dietert and Anr. ILR (1904) 31 Cal 274; Sardar Balbir Singh v. Atma Ram Srivastava AIR 1977 ALL 211 (FB); Suraj Rattan Thirani and Others v. Azamabad Tea Co. Ltd. and Others AIR 1965 SC 295 : [1964] SCR 192; Shridhar Sadba Powar v. Ganu Mahadu Kavade and Others ILR (1928)
52 Bom 111; Ramachandra Kolaji Patil v. Hanmantha ILR (1920) 44 Bom 28 939; Vithal Rajaram Sutar and another v. Ramchandra Pandu Jadhav and Others AIR 1948 Bom – referred to.
Bhaiya Raghunath Singh and others v. Musammat Hansraj Kunwar and Others (1933-34) 61 IA 362, 226 (PC); Thakur Shankar Baksh v. Dya Shankar and Others (1887) LR 15 IA 66; Mohammad Khalil Khan and Others v. Mahbub Ali Mian and Others AIR 1949 PC 78 – referred to.
Jay Cook v. Henry S. Gill (1873) LR 8 CP 107 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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