Supreme Court of India
GANESH PRASADversusRAJESHWAR PRASAD AND ORS.
- Citation
- 2023 INSC 228
- Decided
- 14 March 2023
- Disposal
- Dismissed
- Bench
- SUDHANSHU DHULIA
Holding
An amendment that merely restates or adds alternative pleas already raised by the defendant does not constitute a new cause of action, and therefore Order IX Rule 9 does not bar the fresh suit.
Summary
The appellant, who was the original defendant, challenged a lower‑court order that allowed the plaintiffs to amend their suit seeking redemption of a mortgage and possession of a shop. The plaintiffs had earlier filed a small‑cause suit that was dismissed for non‑prosecution, and later filed a civil suit under Section 83 of the Transfer of Property Act. The amendment sought to add parties and alter the reliefs, which the trial court rejected but the District Court allowed on revision. The appellant argued that the amendment changed the nature of the suit and that Order IX Rule 9 of the CPC barred the fresh suit because the earlier suit was dismissed for default. The Supreme Court held that the amendment did not introduce a new cause of action, that the plaintiffs’ alternative pleas were permissible, and that the two suits involved different causes of action, so Order IX Rule 9 did not apply. Consequently, the appeal was dismissed and the civil suit was allowed to proceed.
Issues considered
- The applicability of Order IX Rule 9 of the CPC to bar a fresh suit after a prior suit dismissed for default.
- Whether the amendment sought by the plaintiffs altered the nature of the suit or introduced a new cause of action.
- Whether alternative and inconsistent pleas can be permitted under Order VI Rule 17 CPC.
- The relevance of the right of redemption under the Transfer of Property Act to the bar under Order IX Rule 9.
Legislation cited
- Code of Civil Procedure, 1908s. Order IX Rule 8, s. Order IX Rule 9, s. Order VII Rule 11, s. Order VI Rule 17
- Limitation Act, 1963s. Section 61A
- Transfer of Property Act, 1882s. Section 60, s. Section 83
Subjects
amendment of pleadingsOrder VI Rule 17Order IX Rule 9cause of actionredemption of mortgageTransfer of Property Actalternative pleascivil procedurelimitationres judicata
Judgment
[2023] 6 S.C.R. 893 893
GANESH PRASAD A
v.
RAJESHWAR PRASAD AND ORS.
(Civil Appeal No. 1699 of 2023)
MARCH 14, 2023 B
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 – Or. VI, R.17 – Or. IX, R.8,9
– Respondent-plaintiff instituted a suit against the appellant-
defendant for a declaration that respondents are the lawful owners
C
of the suit property and decree of eviction on the ground of non-
payment of rent and creation of sub-tenancy – The appellant-
defendant filed a written statement stating that the father of the
respondent-plaintiff was mortgagor of the suit property who
executed a mortgage deed in favour of father of appellant-
defendant (mortgagee) and that is how his father was put in D
possession of the suit property and suit should fail as mortgage
was not redeemed – Later on, the suit came to be dismissed for non-
prosecution – Thereafter, respondents filed another suit for
redemption of mortgage and possession of suit property – The
respondent made an application for amendment of pleadings – Civil
E
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, F
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
G
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 H
893
894 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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.
B 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
C 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.
D 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
E 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
F 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
G 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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 895
filing multiple suits, on the basis of the very same cause of action, A
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
B
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 C
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 D
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 E
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. F
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 G
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
H
896 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D 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
E 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 :
F [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
G 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
H Thirani and Others v. Azamabad Tea Co. Ltd. and Others
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 897
AIR 1965 SC 295 : [1964] SCR 192; Shridhar Sadba A
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.
B
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. C
Jay Cook v. Henry S. Gill (1873) LR 8 CP 107 –
referred to.
Case Law Reference
[2009] 15 SCR 103 referred to Para 26 D
[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 E
[1951] SCR 277 relied on Para 42
[1995] 5 Suppl. SCR 701 relied on Para 43
[2014] 1 SCR 44 relied on Para 44
F
[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
G
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.
H
898 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D 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’).
E 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
F 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.
G
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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 899
[J. B. PARDIWALA, J.]
short, ‘Act, 1963’). Sometime in the year 2005, the father of the A
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 B
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.
C
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 D
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. E
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 F
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 G
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.
H
900 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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
C 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.”
D
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.
E
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
F
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
G 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
H against the Defendant.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 901
[J. B. PARDIWALA, J.]
C. Apart from this any alternative relief or other relief that A
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: B
“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 C
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. D
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 E
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. F
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. G
Xxx xxx xxx
Additional Statement
Xxx xxx xxx
H
902 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
Sons of late
3. Munna age about 33 years Om Prakash
G
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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 903
[J. B. PARDIWALA, J.]
2. That in the plaint line above Para-1 may be cut and in its A
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”
B
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 C
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 D
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 E
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 F
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 G
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
H
904 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D 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
E 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.
F 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.
G
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-
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 905
[J. B. PARDIWALA, J.]
“and nor can be. Since the Plaintiffs aforesaid case which A
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
B
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. C
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
D
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. E
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 F
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/ G
- 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 H
which is also under consideration.
906 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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.
C 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
D is the legal representative of the mortgagor. Particulars of
the said document are as below:-
E
F
G
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 907
[J. B. PARDIWALA, J.]
9(d) That the Def. No. 1 on the basis of the said document A
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
B
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 C
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 D
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 E
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 F
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 G
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”.
H
908 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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
C 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.
D 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
E 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
F 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)
G 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.
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 909
[J. B. PARDIWALA, J.]
(A-1) That a decree for possession of the Plaintiffs over the A
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
B
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 C
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 D
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 E
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 F
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.
G
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
H
910 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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,
G 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/-.
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 911
[J. B. PARDIWALA, J.]
The Court does not find any infirmity or illegality in the order A
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
B
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.
C
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 D
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 E
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 F
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 G
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
H
912 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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,
C 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
D 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
E 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
F 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
G
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
H Order VI Rule 17 of the CPC.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 913
[J. B. PARDIWALA, J.]
31. In such circumstances referred to above, the learned counsel A
prays that there being no merit in the present appeal the same may be
dismissed.
ANALYSIS
32. Having heard the learned counsel appearing for the parties
and having gone through the materials on record the only question that B
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 C
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) D
“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 E
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 F
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 G
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:
H
914 SUPREME COURT REPORTS [2023] 6 S.C.R.
A “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 practice of filing
applications for amendments of pleadings belatedly, a proviso
B
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
C 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
D 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
E 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
F 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
G 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]
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 915
[J. B. PARDIWALA, J.]
The principal reasons that have led to the rule last A
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
B
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 Hongonda Patil v.
Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957 SCR C
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 D
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. E
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 F
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) G
“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 H
916 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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.
C 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
D do not unjustifiably injure rights accrued.”……”
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:
E
“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
F 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
G (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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 917
[J. B. PARDIWALA, J.]
by the party which confers a right on the other side A
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 B
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,
C
(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
D
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 E
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. F
(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, G
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
H
918 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B 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
C 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
D 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
E 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.
F 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
G Court was on the premise that the Defendant as a tenant was in arrears
of rent and had unlawfully 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
H the mortgage and take back the possession of the suit property.
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 919
[J. B. PARDIWALA, J.]
40. It appears that the present suit in which the courts below A
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
B
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 C
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 D
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 E
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 F
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 entitled to take alternative
pleas in support of its case. Where alternative pleas arose to some extent G
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
H
920 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C (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
D 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
E 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
F principle that alternative and inconsistent pleas can be taken by a plaintiff.
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. The trial court found that
G defendants were tenants and not licensees as alleged by the plaintiff.
The 1st 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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 921
[J. B. PARDIWALA, J.]
alternative plea that he was entitled to vacant possession of the premises A
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
B
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 C
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
D
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 E
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 new or inconsistent cause of F
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.
G
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).
H
922 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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.
B
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
C 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
D 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
E 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.
50. We could have at this stage closed the matter saying that if it
F
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
G 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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 923
[J. B. PARDIWALA, J.]
plaintiff shall be precluded from bringing the fresh suit in A
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
B
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 C
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 D
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 E
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.
53. This Court in The Gaya Municipality v. Ram Prasad Bhatt F
and Anr. in Civil Appeal No. 29 of 1965 decided on 8th 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
G
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
H
924 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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.”
G 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 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.
H Minnie Dietert and anr. reported in ILR (1904) 31 Cal 274 at p. 282
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 925
[J. B. PARDIWALA, J.]
and by the Privy Council in Mohammad Khalil Khan and others v. A
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 B
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 C
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 D
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 E
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 F
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 G
right by violation of some duty Imposed upon the defendant in favour of
the plaintiff either by voluntary contract or by positive law. (See: Sardar
Balbir Singh v. Atma Ram Srivastava reported in AIR 1977 ALL 211
(FB))
H
926 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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:—
B
“(3) If the evidence to support the two claims is different,
then the causes of action are also different. …
(4) The cause of action in the two suits may be considered to
be the same if in substance they are identical. …”
C 59. The decision of the Privy Council in Mohammad Khalil Khan
(supra) was taken notice of by this Court in the case of Suraj 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:-
D “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
E 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
F 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
G 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
H
Code observed:
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 927
[J. B. PARDIWALA, J.]
“In considering whether the cause of action in the A
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 B
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 C
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 D
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 E
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 F
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 G
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 939, and pointed out that
H
928 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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.
G 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.
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
H
GANESH PRASAD v. RAJESHWAR PRASAD AND ORS. 929
[J. B. PARDIWALA, J.]
within a period of six months from today. It is clarified that it shall be A
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 B
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. C
68. There shall be no order as to costs.
69. Pending application(s) if any stand disposed of.
Ankit Gyan Appeal dismissed.
(Assisted by : Adityaraj Patolia, LCRA)
D
E
F
G
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