ORDER
D.M. Dharmadhikari, J.
1. This revision under Section 115 of the Code of Civil Procedure has been directed against the order dated 20-11-1996 passed by the 10th Civil Judge Class II, Gwalior whereby application under Order 6, Rule 17, C.P.C. filed by the plaintiffs seeking permission to raise certain factual and legal pleas has been rejected.
2. The facts mentioned below would explain the cause for prefering this revision by the plaintiffs. According to the plaintiffs’ case, the premises in suit which was initially open plot inside the Bada named ‘Mahadik Sahab Ka Bada’ in Dal Bazar, Lashkar, Gwalior was given on rent to the Predecessor-in-title of the defendants by Shakuntala Devi, predecessor-in-title of the plaintiffs, for the business of grain and oil-seed under a rent note executed as back as on 8-12-1953. It is not in dispute that there exists a mortgage deed executed on 14-/-1955 between the deceased landlady and the tenant in which the tenanted premises in suit were mortgaged by the landlady in favour of the tenant for a mortgage money of Rs. 2000/- with an agreement that the mortgage would be renewed after three years and till then the interest payable on the mortgage money shall be adjusted from the rent payable by the tenant to the landlady.
3. After death of Shakuntala Devi, the present plaintiffs as heirs and legal representatives of the landlady, served a legal notice dated 22-1-1986 on the tenants informing that they are willing to pay back the loan of Rs. 2000/- under the mortgage deed to redeem the tenanted premises and seek eviction of the tenants on the ground of their personal need.
4. To the above legal notice sent by the plaintiffs, the defendants sent a reply through their Advocate denying existence of any transaction of mortgage between the parties and claimed title and possession of the suit premises in themselves. After the above reply of the defendants, the plaintiffs served a second legal notice on 20-6-1986 demanding arrears of rent due from past 8 to 10 years and seeking eviction of the defendants on the ground of their (plaintiffs’) personal need. After exchange of the above notices, the plaintiffs as heirs of deceased landlady Shakuntala Devi filed their suit simpliciter on the alleged relationship between them of landlords and tenants.
5. The tenants in their written statement took a plea in which they admitted existence of a ‘ transaction of mortgage in writing between them, but pleaded that such a transaction of mortgage was sham and colourable, According to the defendants, in fact the suit premises were sold to their predecessor-in-title on which they are in possession as owners.
6. After the above mentioned plea based on the mortgage having been raised by the defendants in their written statement, the plaintiffs moved an application under Order 6, Rule 17, C.P.C. whereby they sought permission to plead that in the alternative, for seeking eviction of the tenants from the suit premises, they are willing to pay the mortgage money and redeem the mortgaged property.
7. The application for amendment of the plaint has been strongly opposed by the defendants mainly on the ground that on the date of proposed amendment the suit for redemption of the mortgage was barred by time under Article 61 of the Limitation Act, treating the commencement of period of limitation on expiry of three years fixed under the terms of the mortgage deed for redemption. The mortgage deed was executed on 14-/-1955 in which three years period was agreed for redemption and taking the commencement of limitation from 1988, the proposed amendment for such relief claimed by application under Order 6, Rule 17, C.P.C. filed on 20-/-1996 is said to be barred by limitation under Article 61(a) of the Limitation Act. On behalf of the defendants it is also submitted that the Court should not allow conversion of a suit based on relationship of landlord and tenant into a suit for redemption of the mortgage as there arc two distinct causes of action and they cannot be clubbed into one suit because of the nature and scope of the two reliefs being separate and distinct. For the above legal propositions, reliance is placed on Muni Lal v. The Oriental Fire and Genera! Insurance Company, AIR 1996 642, K. Raheja Constructions Ltd. v. Alliance Ministries, AIR 1995 SC 1768 and Jai Om Singh Choudhary v. Ramnath, 1980 (II) WN 47.
8. On behalf of the plaintiffs it is argued that mere change of nature of the suit and raising of inconsistent pleas is not always a good ground 10 refuse amendment of pleadings. It is submitted that in this case the Court should have allowed the proposed amendment of the plaint because before institution of the suit, the plaintiffs first served a notice on the tenants for seeking redemption of the tenanted premises and also for eviction. In reply to the legal notice, the tenants denied existence of any mortgage. Therefore, the plaintiffs instituted the suit for eviction simpliciter. The mortgage agreement was entered into with their mother deceased Shakuntala Devi when the plaintiffs were minors. They did not have a copy of the mortgage deed and the document was in possession of the defendants as the mortgagee. They discovered the existence of the mortgage deed only when the defendants took a specific plea based on the said document and described the same as sham and colourable. It is, therefore, argued that the proposed amendrnent to the plaint is only consequential to the plea taken by the defendants and deserves to be allowed. Reliance is placed on Nair Service Society v. K.C. Alexander, AIR 1968 SC 1165, and G. Nagamma v. Sriomanamma, (1996) 2 SCC 25).
9. The learned Judge of the trial Court after examining the pleadings of the parties although found that the proposed amendment does not change the relationship of landlord and tenant between the parties, yet rejected the application for amendment thinking that he was bound by the decision of ‘Supreme Court in AIR 1995 SC 1768, AIR 1957 SC 363 and decisions of this Court reported in 1987 MPLJ 126 and 1987 MP WN 109.
10. After hearing the arguments of the learned counsel for the parties, I have looked into the original record of the case, the terms and conditions contained in the abovementioned rent note and the mortgage deed for deciding the question arising before me. It is true that to begin with this suit filed by the plaintiffs was simpliciter for eviction from the suit premises on the basis of their relationship of tenancy under the rent-note. No pleadings based on mortgage deed were initially raised although in the first notice sent by the plaintiffs there is a mention of execution of a mortgage deed. There is apparent reason to accept the explanation of the plaintiffs that initially the suit was not based on any transaction of mortgage because in reply to the notice, the defendants totally denied existence of any mortgage deed and claimed title in themselves. The occasion to raise pleas based on mortgage arose only after the defendants acknowleged the existence of mortgage deed, but tried to avoid its legal effect by pleading that it was sham and colourable. In such an eventuality, the plea based on the mortgage deed is in fact consequential.
11. It is not correct on the part of the trial Judge to hold that by the proposed amendment, there would be a complete change of nature of the suit. The mortgage deed is also concerning mortgage of tenanted premises. The rent note and mortgage deed read together show relationship of landlord and tenant and the mortgage deed does not change that relationship. Even after the plea based on mortgage is allowed to be rasied, the nature of suit would remain the same i.e. of landlord seeking eviction of a tenant, may be that such relief now he is claiming after getting the tenanted premises redeemed by paying the mortgage money.
12. The decisions relied on behalf of the non-applicants/tenants are distinguishable on facts. In the instant case, the consequential relief of redemption claimed by amendment does not alter the nature of suit in which the main relief claimed is that of eviction. In fact, by concealing the existence of mortgate deed the tenant is guilty of deception and fraud practised only to render the relief of redemption barred by time. In such eventuality, the plea has to be allowed to be raised to relieve the party from the effect of deception and fraud committed by the opposite party. The decision relied on behalf of the applicants in the case of S.P. Chenqalvarayan Naidu v. Jagannat, AIR 1994 SC 853 supports the submissions made by the applicants in support of the proposed amendment of the pleadings by the plaintiffs.
13. The last, but most forceful argument advanced by the non-applicants is about limitation. It is submitted that on the date the amendment was proposed, the suit for redemption of the mortgaged property had become barred by lime and such amendment, therefore, was rightly disallowed.
14. If the amendment proposed by the plaintiffs is, in consequence to the plea based on mortgage raised in the written statement, the allowance of such amendment to plaint would relate back to the date of the suit and the relief based on mortgage deed would then be within limitation. In any case, I do not express any final opinion on the same at this stage as the question of limitation would also be one of the issues which may be tried in the case. There is, however, no reason not to allow the plaintiffs to raise such plea based on mortgage by amending the plaint.
15. Consequently, the revision succeds and is hereby allowed. The impugned order dated 20-11 -1996 passed by the trial Court is set aside. The application under Order 6, Rule 17, C.P.C. filed by the plaintiffs is hereby allowed. The trial Court shall allow them to carry out the amendment in the plaint within the time to be fixed by it and after granting necessary permission to the defendants to make consequential amendments, it shall proceed to frame issues and try the suit in accordance with law. The costs of this revision shall abide the ultimate result of the suit.