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
- 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.
- 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
- Order VI Rule 17, Code of Civil Procedure, 1908Amendments necessary to determine the real controversy must be allowed liberally unless they cause injustice, withdraw an admission, raise a time-barred claim or set up an entirely new case; following Firm Sriniwas Ram Kumar, G. Nagamma and Praful Manohar Rele, inconsistent alternative pleas are permissible, and where the plea introduced is the one the defendant himself set up, no prejudice arises. (¶¶ 33, 34, 35, 36, 37, 42, 43, 44, 47, 48)
- Order IX Rules 8 and 9, Code of Civil Procedure, 1908A plaintiff whose suit is dismissed for default is precluded only from a fresh suit on the same cause of action; applying Mohammad Khalil Khan and Suraj Rattan Thirani, the causes of action must be identical in substance and where the evidence to support the two claims differs the causes of action differ. (¶¶ 51, 52, 53, 58, 59, 60)
- Section 60, Transfer of Property Act, 1882The right of redemption subsists as long as the mortgage subsists and can be extinguished only by act of parties or by a decree in the prescribed form; a dismissal for default does not extinguish it, so a second redemption suit within limitation is not barred and the cause of action is a recurring one. (¶¶ 61, 62)
Held
- The first suit proceeded on a landlord-tenant relationship and the present suit on redemption of the mortgage the defendant himself pleaded; the plaintiffs have not given up the tenancy case, and though the pleadings are poor, the amendment introduces an alternative plea which the defendant set up and cannot be taken by surprise by. Revajeetu Builders and Ganesh Trading, which did not notice the three-Judge decision in Firm Sriniwas Ram Kumar, do not assist the defendant; delay alone is no ground to refuse and the defendant was compensated in costs. (¶¶ 39, 40, 41, 45, 46, 47)
- The present suit is not on the same cause of action as the Small Causes suit; whether the redemption claim is time-barred is for the trial court on evidence. Even if both suits had sought redemption, the general terms of Order IX Rule 9 cannot override the substantive right of redemption under Section 60, which is extinguished only in the manner the statute prescribes. (¶¶ 60, 61, 62, 65, 66)
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.