# GANESH PRASAD v. RAJESHWAR PRASAD AND ORS

- **Citation:** [2023] 6 S.C.R. 893
- **Court:** Supreme Court of India
- **Decided:** 2023-03-14
- **Case number:** Civil Appeal No. 1699 of 2023
- **Bench:** Sudhanshu Dhulia, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganesh-prasad-v-rajeshwar-prasad-and-ors-37222
- **Pages:** 37

## Headnote

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
[2023] 6 S.C.R. 893
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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 i

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GANESH PRASAD
v.
RAJESHWAR PRASAD AND ORS.
(Civil Appeal No. 1699 of 2023)
MARCH 14, 2023
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 - Or. VI, R.17 - Or. IX, R.8,9
- Respondent-plaintiff instituted a suit against the 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
[2023] 6 S.C.R. 893
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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
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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
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
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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
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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.
Case Law Reference
[2009] 15 SCR 103
referred to
Para 26
[2008] 6 SCR 416
referred to
Para 33
[2009] 11 SCR 131
referred to
Para 34
[1999] 5 Suppl. SCR 271
referred to
Para 35
[1966] SCR 796
referred to
Para 35
[1951] SCR 277
relied on
Para 42
[1995] 5 Suppl. SCR 701
relied on
Para 43
[2014] 1 SCR 44
relied on
Para 44
[2007] 5 SCR 306
referred to
Para 45
[1978] 2 SCR 614
referred to
Para 45
[2011] 12 SCR 140
relied on
Para 48
[1964] SCR 192
referred to
Para 59
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1699
of 2023.
From the Judgment and Order dated 04.07.2018 of the High Court
of Judicature at Allahabad in MUA No. 1346 of 2015.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
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Aniruddha Joshi, Rajeev Maheshwaranand Roy, P. Srinivasan,
Advs. for the Appellant.
Tejasvi Kumar, Syed Sarfaraz Karim, Ms. Renu Bhandari, Ambar
Qamaruddin, Advs. for the Repondents.
The Judgment of the Court was delivered by
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').
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 1/3rd 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
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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.
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.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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 nonprosecution vide order dated 20.10.2010. The order dismissing the Small
Cause Case No. 3 of 2007 reads thus:-
"20-10-10Called 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.
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.
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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.
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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. Father of the or I the
Defendant have never been the tenant of the Plaintiffs or
their father.
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Additional Statement
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GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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.
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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 resjudicata."
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
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
Sons of late
Om Prakash
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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
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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.
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-
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"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 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.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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:-
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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 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".
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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 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.
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(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, 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
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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/-.
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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-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 APPELLANTDEFENDANT
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
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS.
[J. B. PARDIWALA, J.]
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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.
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.