JUDGMENT
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
here.
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
them.
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.
