Supreme Court said that if the alternative plea introduced by plaintiff through an amendment is one which the defendant set up in his written statement, although inconsistent with the original plea, the Court is not precluded from allowing the amendment if it does not prejudice the defendant.
Supreme Court: In an appeal challenging the amendment of plaint and applicability of provisions of Order IX Rule 9 of Civil Procedure Code, 1908 (‘CPC’) in a case wherein the request for amendment in plaint, initially rejected but was allowed by the Revisional Court and High Court, the Division Bench of Sudhanshu Dhulia and J.B. Pardiwala, JJ. dismissed the present appeal while discussing at length the amendment of a plaint or written statement or filing of an additional written statement, and the maintainability of fresh suit in case of a decree passed against the plaintiff.
The original plaintiffs claim to be owners of the suit property mortgaged to defendant’s father through mortgage deed executed on 12-2-1957. It is alleged that the mortgagee continued to remain in possession of the suit property from 1957 till 2005 (Defendant’s father died in 2005), and mortgagor’s right in the suit property extinguished as per Article 61-A of the Schedule to the Limitation Act, 1963. The Plaintiffs instituted a suit against the defendant and others in the Court of Small Causes on 15-3-2007 seeking declaration of Plaintiffs as the lawful owners praying for a decree of possession of the suit property let out to defendant’s father and that after his demise, the defendant stopped paying the rent and illegally inducted other defendants as sub-tenants in the suit property.
The Court observed that the Small Cause Suit was dismissed for non-prosecution due to Plaintiff’s absence vide order dated 20-10-2010. The Plaintiffs came up with another suit before the Civil Court under Section 83 of Transfer of Property Act, 1882 in 2009 in which, the request for amendment in plaint, allegedly seeking major changes related to status of the parties, was rejected vide order dated 20-5-2013. The same was challenged by the Plaintiffs through a civil revision application, which was allowed with costs due to delay. Defendants being aggrieved by the allowing of revision application approached through Article 227 of Constitution of India, but the High Court refused to interfere with the order passed by the District Court and rejected the said application . Thus, the defendant approached the Court through present appeal.
The Court referred to several cases including North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511 clarifying the question of granting or disallowing amendments under Order 6 Rule 17 CPC, which are not unjust to the other party and are necessary for deciding the controversy. The Court further mentioned P.A. Jayalakshmi v. H. Saradha, (2009) 14 SCC 525, LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128.
The Court through catena of cases concluded that amendment in plaint, written statement or filing of an additional written statement is subject to exception that any admission made in favour of the other party is wrong, and that all amendments of the pleadings necessary for determining real controversies in the suit should be allowed liberally, provided that the proposed amendment does not alter or substitute a new cause of action on the original lis. The Court further added that “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.”
The Court pointed out that in the prior suit before the Small Causes Court, the Plaintiffs portrayed a landlord tenant relationship, wherein, the defendant unlawfully inducted sub-tenants. The present suit prays for redemption of mortgage and possession of suit property. The Court took the present suit two-fold regarding the tenant-landlord relationship and redemption of mortgage.
The Court referred to Srinivas Ram Kumar v. Mahabir Prasad, 1951 SCC 136 regarding parties’ entitlement to alternative pleas, as reiterated in G. Nagamma v. Siromanamma, (1996) 2 SCC 25 and Praful Manohar Rele v. Krishnabai Narayan Ghosalkar, (2014) 11 SCC 316. The Court said that if the alternative plea introduced by plaintiff through an amendment is one which the defendant set up in his written statement, although inconsistent with the original plea, the Court is not precluded from allowing the amendment if it does not prejudice the defendant. The Court relied on State of M.P. v. Union of India, (2011) 12 SCC 268 throwing light on the purpose and object of Order 6 Rule 17 of CPC.
Addressing the defendant’s challenge against maintainability of present suit as per Order IX Rule 9 of CPC against the matter dismissed by the Small Causes Court, the Court clarified that “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.” The Court mentioned the case of Gaya Municipality v. Ram Prasad Bhatt, (1967) 2 SCWR 823 explaining the scope of Order IX Rule 9 of CPC. The Court through various cases clarified that “the cause of action in a suit has no reference to the defense taken in the suit, nor is it related to the evidence by which that cause of action is established.” The Court summed up the said Order IX Rule 9 of CPC that when the suit is wholly or partially dismissed under Rule 8, the Plaintiffs shall be precluded from bringing in a fresh suit, in respect of the same cause of action.
The Court also rejected the defendant’s contention based on Order CPC and observed that the present suit is not filed on the same cause of action as that before the Small Causes Court. The Court added that the right to redeem is conferred upon the mortgagor by an enactment which can only be deprived in the manner indicated and strictly complied with. It further added that “if the right of redemption is not extinguished, the provision like Order 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 is different until the right of redemption is extinguished or a suit for redemption is time barred.”
The Court dismissed the present appeal and vacated the interim order passed for staying the further proceedings in the present suit. The Court also directed the Trial Court to dispose of the present suit, preferably within 6 months.
[ Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256, judgment dated 14-3-2023 ]
Judgment authored by: Justice J.B. Pardiwala
