GANESH PRASAD versus RAJESHWAR PRASAD AND ORS.

Citation: [2023] 6 S.C.R. 893 · Decided: 14-03-2023 · Supreme Court of India · Bench: SUDHANSHU DHULIA · Disposal: Dismissed

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Judgment (excerpt)

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893
GANESH PRASAD
v.
RAJESHWAR PRASAD AND ORS.
(Civil Appeal No. 1699 of 2023)
MARCH 14, 2023
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 – Or. VI, R.17 – Or. IX, R.8,9
– Respondent-plaintiff instituted a suit against the appellant-
defendant for a declaration that respondents are the lawful owners
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
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
Judge rejected the aforesaid application – Respondent challenged
the above order by filing revision application before the District
Court, which in turn allowed the respondent to amend the plaint –
Appellant challenged the said order before the High Court – High
Court declined to interfere with the order – Appellant contended
before the Supreme Court that suit is barred by provisions of Or. IX,
R. 9, as the earlier suit was dismissed for default and the cause of
action is same in both the suits – On appeal, held: If the pleas
introduced by plaintiff by way of an amendment is also the plea,
which the defendant has set up in his written statement and such a
plea of the plaintiff is an alternative plea, even though it is
inconsistent with the original plea, since there is no prejudice caused
to the defendant, the Court is not precluded from allowing the
amendment – In the instant case, the case of plaintiffs as put up in
alternative is that the defendant is in possession of the suit property
as a mortgagee and they are ready to redeem the mortgage by making
the necessary payment of the mortgaged amount and take back the
[2023] 6 S.C.R. 893
893
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894
SUPREME COURT REPORTS
[2023] 6 S.C.R.
possession – It is settled that if the evidence to support the two
claims is different than the causes of action are also different – The
instant suit was not filed on same cause of action – Hence, the
contention raised on basis of the provisions of Or.IX, R.9 of the
CPC has no merits – Transfer of Property Act – ss. 60 and 83.
Dismissing the appeal, the Court
HELD: 1. Plaintiffs and Defendant are entitled to amend
the plaint, written statement or file an additional written
statement. It is, however, subject to an exception that by the
proposed amendment, an opposite party should not be subject to
injustice and that any admission made in favour of the other party
is not but wrong. All amendments of the pleadings should be
allowed liberally which are necessary for determination of the
real controversies in the suit provided that the proposed
amendment does not alter or substitute a new cause of action on
the basis of which the original lis was raised or defence taken.
Inconsistent and contradictory allegations in negation to the
admitted position of facts or mutually destructive allegations of
facts should not be allowed to be incorporated by means of
amendment to the pleadings. [Paras 37, 38][918-E-F]
2. If the pleas sought to be introduced by plaintiff by way of
an amendment is also the plea, which the defendant has set up in
his written statement and such a plea of the plaintiff is an
alternative plea, even though it is inconsistent with the original
plea, since there is no prejudice caused to the defendant, the
Court is not precluded from allowing the amendment. [Para
47][922-A-B]
3. Order IX Rule 9 bars fresh suit in respect of the same
cause of action in case the earlier suit was dismissed as indicated
in Order IX Rule 8 of the CPC. The term “same cause of action”
assumes significance in as much as the bar under Order IX Rule
8 of the CPC applies to a later suit only in respect of the very
same cause of action. In case the cause of action in the later suit
was altogether different, which has nothing to do with the cause
of action in the earlier suit, the statutory bar has no application to
such later suits. It was only with a view to curb the tendency of
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filing multiple suits, on

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