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Allahabad High Court
Sheo Prasad And Anr. vs Lalit Kuar on 28 May, 1896
Equivalent citations: (1896) ILR 18 All 403
Author: K John Edge
Bench: J Edge, Kt., Blennerhassett


John Edge, Kt., C.J.

1. This was a suit in which the plaintiffs, alleging a mortgage of

1854, claimed the relief of redeeming that mortgage. The defendant

denied by his pleadings that there was any mortgage of 1854, and

alleged that the plaintiffs held three mortgages over the lands, the

first of which was made in 1859. The first Court was of opinion that

there probably had been, a mortgage of 1854, and that the money duo

under that mortgage was part of the consideration of the mortgage of

1859, and dismissed the suit. If that finding is correct, it is

needless to observe that the suit was properly dismissed. If the

mortgage of 1859 was in substitution of the mortgage of 1854, part of

the consideration being a fresh advance, as was found, and part of the

consideration being, as thought by the Munsil, the money due under the

mortgage of 1854, the mortgage of 1854 ceased to have any effect in law

or in equity, except that the defendant, and not the plaintiffs, could,

if necessary, rely on it as a shield. If the Munsif’s finding was

correct, the plaintiff’s claim was a fraudulent one. They were

endeavouring to get possession from a usufructuary mortgagee on payment

or redemption of the mortgage which had ceased to exist and which had

merged in a mortgage for a larger amount. However, this being a second

appeal, it is not the finding of the first Court on questions of fact

to which we have to attend and which is binding on us; it is the

finding of the Court of First Appeal, which, according to law and

according to the Code of Civil Procedure, is the finding of fact behind

which we cannot go in second appeal. Where the finding of the first

appellate Court is one of fact and not dependent on the construction of

a document or of documents, we have a decision of the Privy Council to

bind us, and that decision tells us that a High Court in such

circumstances in second appeal must accept, and is bound by, the

findings of fact, of the Lower Appellate Court. Now when I come to the

finding of fact of the Lower Appellate Court, it is this, that the

plaintiffs have failed to prove any mortgage of 1854. The Lower

Appellate Court rightly applying the law to that finding dismissed the

plaintiffs’ appeal which was before it. The plaintiffs have appealed


2. It has been contended by Mr. Foy that, notwithstanding that his

clients the plaintiffs failed to prove their cause of action, I use the

term advisedly, which they alleged in their plaint, namely, a cause of

action, one essential ingredient of which was the proof of the mortgage

alleged by them of 1854, they are entitled to a decree to redeem

something. They cannot be entitled to a decree to redeem a mortgage

which they had failed to prove. It was not their case that there was

any other mortgage than the mortgage of 1854. I have said that I use

the term “cause of action” advisedly, and I do. No lawyer in England is

under any misapprehension since the ruling of the Court of Appeal in

Read v. Brown L.R. 22 Q.B.D. 128, as to what the meaning of “cause of

action” is. The Full Bench of this Court in 1894 had to consider what

was the meaning of the term “cause of action” in the case of Murti v.

Bhola Ram I.L.R. 16 All. 165. Five Judges of this Court adopted the

view expressed by the Court of Appeal in England in Read v. Brown. One

Judge of this Court took a slightly different view. In the case of

Salima Bibic v. Sheikh Muhammad I.L.R. 18 All. 131, the meaning of the

term “cause of action,” as employed in the Code of Civil Procedure, was

considered by a Division Bench of the Court, which followed the view

taken by the majority of the Court in Murti v. Bhola Ram and by the

Court of Appeal in England in Read v. Brown.

3. The Legislature, conceiving, and I think rightly, that there

ought to be some kind of procedure which plaintiffs and defendants

should be bound to follow in suits in Civil Courts in India, by a

variety of Regulations and Acts attempted to provide from time to time

a Code of Civil Procedure. The present Code of Civil Procedure is known

as Act No. XIV of 1882. In Section 50 of that Code the Legislature

imperatively directed that plaints should contain certain particulars.

The Legislature used the word “must,” and, as has been pointed out by a

judgment of this Court, which we presume is known in these Provinces,

when the Legislature uses “must” instead of “shall,” it uses a word

which is most strongly imperative. Amongst the particulars which the

Legislature has enacted that the plaint must contain is “a plain

concise statement of the circumstances constituting the cause of action

and where and when it arose.” Applying the decision in Read v. Brown

and the decision of the Full Bench in Muni v. Bhola Ram to this case,

one essential particular of the plaintiffs’ cause of action in this

case was the mortgage of 1854. In the cause of action alleged in the

plaint or as forming part of it there was absolutely no suggestion of

any mortgage other than the mortgage of 1854. That mortgage has been

found by the Lower Appellate Court not to be proved. I do not suppose

that any one would suggest that when a plaintiff brings his suit for

redemption of a mortgage and the fact is denied that that mortgage ever

was made, the onus of proof is on the defendant. Any such suggestion as

that would be to revolutionize all the principles upon which the rules

of evidence have been based for centuries. It is not and never was any

part of a defendant’s duty to make out a case for the plaintiff either

by evidence or admission.

4. Now it was held by the majority of a Full Bench of this Court in

1876, in the case of Ratan Kuar v. Jiwan Singh I.L.R. 1 All. 194, that

plaintiffs who failed to prove the averments upon which their suit was

based were not entitled to relief in respect of a portion of the

property in suit of which the defendants admitted that they were

mortgagees. That was a case in which the plaintiffs alleged a mortgage

of 1842 for a certain amount. The defendants denied that mortgage and

put it in issue, and on their side alleged a mortgage of the same year

of different parcels of land and for a different amount. In Parmanand

Misr v. Sahib Ali I.L.R. 11 All. 438, three Judges of this Court agreed

in a judgment in which I endeavoured to point out where lay the onus of

proof in a suit on a mortgage, and that if the plaintiff in a suit on a

mortgage failed to prove the mortgage upon which he relied and which he

alleged in his plaint, he could not succeed upon the mere fact that the

defendant admitted that he was a mortgagee of the land. I also

endeavoured to point out that that was the necessary corollary from a

decision of the House of Lords in England, and that it was necessary

for a plaintiff suing upon a mortgage to prove, if not admitted, that

he had, when he brought his suit, a subsisting cause of action. In

Zingar Singh v. Bhagwan Singh Weekly Notes 1889 p. 187, a Division

Bench of this Court held in a suit which was for redemption of a

mortgage that a plaintiff in such a suit is not entitled to succeed

merely because the defendant fails to prove the case he sets up, unless

the defendant’s pleadings show that on failure to prove a particular

defence the plaintiff must be entitled to a decree. The right claimed

there was redemption, and part of the cause of action was a mortgage

alleged of 1852. On this point Straight, J., said: “If he (the

plaintiff) failed to establish that mortgage, which he as the party

seeking relief was bound to do and was the most competent person to do,

then his suit must fail.”

5. Although the judgments of this Court upon these points are

binding upon this Bench, it is just as well that in this case I should

refer to one or two judgments of other Courts to show that the views

which have been expressed and maintained of recent years by most of the

Judges of this Court are not absurd views to the minds of others and

are not views which are peculiar to the Judges of the High Court at

Allahabad. In Krishna Pillai v. Rangasami Pillai I.L.R. 18 Mad. 462, a

Division Bench of the Madras High Court said: “We agree with West. J.,

in Govindro Deshmukh v. Ragho Deshmukh in holding that the plaintiff

failing to establish the mortgage upon which the suit was based should

not be allowed to fall back on some other, as to which admissions may

have been made by the defendants in other proceedings.” The cast which

was referred to is reported in I.L.R. 8 Bom. 543. In that case West and

Nanabhai Haridas, JJ.; held that “where a particular instrument is sued

upon as the basis of a right, it is incumbent on a plaintiff to

establish his case on that particular cause of action, and not on a

cause of action merely bearing the same name or of the same description

and so included in the same class.” That, in my opinion, is good law,

and sound common sense and sound justice. If it were otherwise, a

plaintiff might come into Court and seek to redeem a fictitious

mortgage, and he might succeed on some other mortgage which was not in

suit at all in the particular case. The object of Section 50 of the

Code of Civil Procedure is to give information to the defendant as to

the case which he has got to meet. In order to provide as far as

possible that that information shall he truthfully given, the

Legislature has enacted that the plaint must be signed and must be

verified by some one possessing a knowledge of the facts. The

Legislature had some object in so enacting Their Lordships of the Privy

Council as far back as 1866 in Eshern Chunder Singh v. Shama Churn

Bhutto 11 Moo. I.A. 7 at p. 24, said: “Their Lordships are obliged to

disapprove of the decision come to by the High Court. They desire to

have the rule observed that the state of facts and the equities and

ground of relief originally alleged and pleaded by the plaintiff shall

not be departed from.” The state of facts alleged by the plaintiffs in

this case was a mortgage to the defendant made in 1854. The equities

alleged were that the time had arrived for redemption of that mortgage

and that the plaintiffs were entitled to redeem. The ground of relief

was the right to redeem a mortgage of 1854, and no other mortgage.

Applying that ruling of the Privy Council to this case, we should not

be at liberty, even if we were not bound by the rulings of our own

Court, to give the plaintiffs redemption of a mortgage which they had

not asked to redeem, and to decree a suit in which all the facts going

to the plaintiffs’ alleged cause of action had been found against


6. Mr. Foy relied upon two cases to be found in the Bombay Reports.

The first of those cases was that of Lakshman Bhisaji Sirsekar v. Hari

Dinkar Demi I.L.R. 4 Bom. 584, in which the Bombay High Court, of

course not having before them the guidance of the decision in Read v.

Brown in the Court of Appeal in England, apparently held that it was

immaterial to a plaintiff’s cause of action on a mortgage that he

failed to prove the mortgage which he alleged. I cannot help thinking

that if the learned Judges who decided that case had had an opportunity

of considering the judgments of the present Master of the Bolls and of

Fry and Lopez, L. JJ., as to what constitued a cause of action, they

never could have come to the decision at which they arrived. The other

Bombay case was Chimanji v. Sakharam I.L.R. 17 Bom. 365. In that case a

Division Bench of the Bombay High Court, with out considering what was

the cause of action on which the plaintiffs came into Court and whether

they had proved that cause of action, apparently followed the decision

in Lakshman Bhisaji Sirsekar v. Hari Dinkar Desai I.L.R. 4 Bom. 584. So

far as one can really understand the decision in the case reported in

I.L.R. 17 Bombay, it would appear to be immaterial whether a plaintiff

proved the cause of action which he alleged when suing on a mortgage or

in respect of a mortgage, so long as he did not resort to dishonest

artifices to procure evidence for his case and the position of

mortgagor and mortgagee was admitted by the defendants., but not under

the mortgage alleged by the plaintiff. If that were the law, Clause (d)

of Section 50 of the Code of Civil Procedure might as well be struck

out of the statute book.

7. In this case the rulings of this Court bind us as to the view of

the law which we should follow; and whether I agreed with them or not I

should feel myself bound by them and should not question them. Settled

principles of law administered by a Court of Justice ought not to be

lightly disturbed or doubt cast upon them without very sufficient

reason. Not only do I see absolutely no reason for the slightest doubt

as to the correctness of those decisions of this Court, but I entirely

approve of them. They are in accordance with the views of the Privy

Council; they are in accordance with the intentions of the Legislature

and with principles of sound common sense and justice, according to

which a man who brings a false case, or even brings a true case and

fails to prove it, should not get a decree on a different cause of

action from that alleged by him, and a cause of action which he has

repudiated in the Court of First Instance and in the Court of first

appeal, and only relies on as an off-chance in the Court of second

appeal. I would dismiss this appeal with costs.

Blennerhassett. J.

8. I concur.

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