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Order Ix Rule 9 Prohibits The Filing Of A New Lawsuit For The Same Cause Of Action

Dikshita More ,
  24 March 2023       Share Bookmark

Court :
Hon’ble Supreme of India
Brief :

Citation :
Civil Appeal 2023

Case title:

Ganesh Prasad vs Rajeshwar Prasad

Date of Order:

14th March, 2023


Justice Sudhanshu Dhulia and J B Pardiwala


Petitioner: Ganesh Prasad

Defendant: Rajeshwar Prasad


  • The respondents herein shall be referred to as "the Original Plaintiffs or Plaintiffs" and the appellant herein shall be referred to as "the Original Defendant or Defendant" for convenience.
  • This appeal is brought at the request of the Original Defendant of Suit No. 154 of 2009, which was filed by the Plaintiffs in the Eastern District Court of Ballia Civil Judge (J.D.) Court of Civil Judge (J.D.) for possession of the suit property upon redemption of mortgage. This appeal is directed against the order made by the High Court of Judicature at Allahabad on July 4, 2018, in the Civil Miscellaneous W.P. 1346 of 2015.
  • The property in question is a shop in Block No. 2-5, A. Nos. 25, 26, 27, and 29, which is located in Chowk, City Ballia, Pargana, and District Ballia. The property in dispute is allegedly owned legally by the plaintiffs. According to the defendant, the shop was transferred into his control after the father of the plaintiffs signed a mortgage document in his favour for a third of the suit property indicated above. Hence, in the Defendant's view, the Plaintiffs' father was both the mortgagee and the mortgagor. The aforementioned registered mortgage deed is alleged to have been signed on February 12, 1957.
  • Since neither the mortgage money nor the mortgage was redeemed from 1957 until 2005, the mortgagee continued to be in possession of the suit property. According to Article 61A of the Schedule to the Limitation Act, 1963 (also known as the "Act, 1963"), the mortgagor's right in the mortgaged property was extinguished after 30 years had passed. The father of the defendant, who was also the mortgagee, Shree Gulab Chand, passed away sometime in 2005.
  • The Plaintiffs filed Small Cause Suit No. 3 of 2007 on March 15, 2007, in the Court of Small Causes Judge (Senior Division) against the Appellant Defendant herein and four other defendants, seeking a ruling that the Plaintiffs are the rightful owners of the suit property, which is the shop. The shop was rented to the Appellant Defendant herein's father, who passed away before the Plaintiffs, and after his death, the Defendant stopped paying the In order to obtain a decree of possession of the shop, the Plaintiffs prayed.
  • In the aforementioned Suit No. 3 of 2007, the Appellant Defendant filed his written statement in which he denied the entirety of the claims made by the Plaintiffs and further stated that the Plaintiffs' father had signed a mortgage deed on the suit property dated 12.02.1957, explaining how the Defendant's father came into possession of the suit property. The mortgage was never redeemed by the plaintiffs' father or his legitimate heirs.
  • The Plaintiffs filed a civil revision application in the Court of the Additional District Judge, Ballia, challenging the aforementioned order made by the knowledgeable Civil Judge. By order dated February 25, 2015, the District Court approved the revision application and granted the Plaintiffs' request to revise the plaint. But because the amendment petition was submitted more than three years after the lawsuit was first filed, the revisional court decided it was appropriate to charge the plaintiffs Rs. 3,000 in expenses.
  • The Defendant challenged the abovementioned ruling before the Supreme Court by filing a petition under Article 227 of the Constitution. The Defendant was unhappy with the order made by the Additional District Judge approving the revision application filed by the Plaintiffs as stated. The application submitted by the Defendant herein was denied by order dated July 4, 2018, as the High Court declined to intervene with the decision made by the District Court in the exercise of its supervisory jurisdiction.

Issues raised:

In the current appeal, we have restricted our decision-making to two specific issues: first, whether the Plaintiffs should be allowed to amend the plaint, and second, whether the provisions of Order IX Rule 9 of the CPC are applicable to the current case.


  • The renowned attorney further argued that the High Court overlooked a crucial legal issue by failing to recognise how the alteration altered the nature of the case completely. He would argue that the Defendant was proved to be a tenant in arrears of rent when the first action was brought in the Small Causes Court, and it was further alleged that the Defendant had incorporated sub-tenants in the suit property. The experienced attorney will contend that after the Small Causes Court lawsuit was dismissed for lack of prosecution, the Plaintiffs filed a new lawsuit in the Civil Court, designating it as one under Section 83 of the TP Act. Later, the Plaintiffs could not have stated, by way of amendment, that the lawsuit was not brought pursuant to Section 83 of the TP Act and instead demanded that the Defendant's tenancy be terminated and that he be ordered to turn over possession of the shop. It is claimed that the Plaintiffs could not have reintroduced the tenancy matter while requesting a possession order.
  • The sole issue that warrants our attention is whether the High Court made a mistake in passing the impugned order after hearing from the learned attorneys for the parties and reviewing the documents in the record.
  • There can be no question or disagreement that the courts should be flexible in granting requests for permission to amend pleadings, but it is also established that the courts must take into account the statutory restrictions brought about by the Code of Civil Procedure (Amendment) Acts, one of which is the proviso attached to Order VI Rule 17.
  • As a result, both the Plaintiffs and the Defendant may file an amended plaint, written statement, or another written statement. However, there is an exemption that states that under the proposed amendment, the opposing party should not suffer injustice and that any admission made in the other party's favour is unjust. Any pleadings revisions should be generously permitted as long as they do not change or substitute a new cause of action for the one that formed the foundation for the first complaint or defence, which is important for resolving the real issues in the case.
  • This Court found it incredibly challenging to understand what the Plaintiffs intended to communicate by way of the amendment since the pleadings are so weak and pitiful. After much work, we have finally been able to determine that the late Gulab Chand, the father of the appellant defendant, was the mortgagee of the suit property. The late Harihar Prasad, the father of the Plaintiffs, served as the mortgagor and signed a mortgage document on February 12, 1957, in favour of the appellant defendant's father for a sum of Rs. 700/-. The father of the appellant defendant occupied the suit property as a tenant until the year 2005, which was the year of his passing, after his grandpa, the late Laxman Prasad, had occupied it as a tenant since the year 1953 at a rent of Rs. 23 per month. After then, the tenant of the property under litigation was the appellant defendant. The grandfather and father of the claimants were tenants in the property under dispute, and a mortgage deed was also made and completed with regard to the same property in 1957. This is what the appellant defendant seeks to convey.
  • In the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others, reported in AIR 1951 SC 177, a three-judge bench of this court decided that a party is allowed to present alternative arguments in support of its claim. Alternative pleas that partially stemmed from the defendant's confessed stance are not inadmissible solely because they conflict with the other plea. It was decided that a plaintiff could rely on various rights alternatively and that nothing in the CPC prohibits a party from alleging two or more incompatible sets of allegations and requesting remedies in each of them separately. It further noted that while a Court should not order relief for a plaintiff in a case where there is no basis in a pleading on which the other side was not contacted or given the opportunity to appear, there would be nothing improper in doing so if the alternative argument the plaintiff could have made was not only acknowledged by the defendant in his written statement but was also explicitly advanced as an answer to the claim the plaintiff made in the lawsuit.
  • This Court reaffirmed the idea that a plaintiff is allowed to make even contradictory arguments while requesting alternative reliefs in G. Nagamma and Another v. In (1996) 2 SCC 25, Siromanamma and others published their findings. The appellants in that case brought a lawsuit for the specific performance of a conveyance agreement. Afterwards, a request to alter the complaint was made, claiming that the execution of the sale deed and the acquisition of a document for re-conveyance had become one transaction, i.e., a mortgage by conditional sale. As a result, the plaintiff also requested assistance to pay off the mortgage. On the grounds that the lawsuit was brought for particular performance and that the alteration would modify the character of the complaint as well as the cause of action, the trial court and the High Court denied the same. Although this Court overturned the earlier ruling, it did so on the grounds that the plaintiff in that case was entitled to raise any defence, no matter how contradictory, and that amending the complaint would not alter either the claim or the remedy.
  • The aforementioned observations, in our opinion, do not help the appellant in this case either, given that even in the judgement in Ganesh Trading Co. (above), it did not make reference to the three-judge bench decision of this Court in Firm Sriniwas Ram Kumar (supra).
  • If the defendant's written statement of defence also contains the defence that the plaintiff is attempting to introduce through an amendment, even though the plaintiff's alternative defence is inconsistent with the defendant's original defence, the court is not prohibited from allowing the amendment because the defendant has not suffered any harm.
  • In the event that the earlier claim was dismissed as specified in Order IX Rule 8 of the CPC, Order IX Rule 9 prohibits the filing of a new lawsuit for the same cause of action. The phrase "same cause of action" becomes important since a later lawsuit can only be barred under Order IX Rule 8 of the CPC if it is brought for the exact identical cause of action. The statutory bar does not apply to such later litigation if the cause of action in the later suit was entirely distinct and had nothing to do with the cause of action in the earlier suit.
  • The trial court will now move forward to hear the lawsuit 154 of 2009 and decide it as soon as possible, preferably within a period of six months from today. It is made clear that both parties are free to make any legal objections that are permitted by law.


It is additionally made clear that we haven't made any judgements about the civil suit's merits. The civil lawsuit will be decided solely based on the evidence that the parties may present in compliance with the law. There won't be a cost-related judgement. Any pending applications have been resolved.

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