VidhiSangh

Supreme Court of India · 14/03/2023

GANESH PRASAD versus RAJESHWAR PRASAD AND ORS.

[2023] 6 S.C.R. 893 · 2023 INSC 228

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Summary

Owners of a shop in Ballia sued the occupant as a tenant in the Small Causes Court; that suit was dismissed for non-prosecution. They then sued to redeem a 1957 possessory mortgage which the occupant had set up in his defence, and later sought to amend the plaint to plead tenancy and possession in the alternative, which the revisional court allowed on costs and the Allahabad High Court upheld. The Supreme Court dismissed the occupant's appeal: a plaintiff may plead inconsistent alternative cases, especially one the defendant himself set up; Order IX Rule 9 CPC bars only a fresh suit on the same cause of action, and the redemption suit rests on a different one; and the right of redemption, extinguished only under Section 60 of the Transfer of Property Act, gives a recurring cause of action.

Issues

  1. Whether a plaintiff who sued to redeem a mortgage may amend the plaint under Order VI Rule 17 CPC to plead, in the alternative, a landlord-tenant relationship and seek possession, where that was the case set up by the plaintiff in an earlier suit and the mortgage was the defendant's own plea.
  2. Whether a suit for redemption is barred by Order IX Rule 9 CPC because an earlier suit for eviction on the ground of tenancy was dismissed for non-prosecution.

Provisions considered

Held

Result

Appeal dismissed without costs; Allahabad High Court order dated 04.07.2018 affirming leave to amend the plaint in Suit No. 154 of 2009 upheld; interim stay of the suit vacated and the trial court directed to decide it preferably within six months, all legal contentions left open and no opinion expressed on merits.

Judgment PDF: Supreme Court of India, [2023] 6 S.C.R. 893.