{"id":105996,"date":"1896-05-28T00:00:00","date_gmt":"1896-05-27T18:06:40","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheo-prasad-and-anr-vs-lalit-kuar-on-28-may-1896"},"modified":"2015-10-12T14:30:19","modified_gmt":"2015-10-12T09:00:19","slug":"sheo-prasad-and-anr-vs-lalit-kuar-on-28-may-1896","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheo-prasad-and-anr-vs-lalit-kuar-on-28-may-1896","title":{"rendered":"Sheo Prasad And Anr. vs Lalit Kuar on 28 May, 1896"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Sheo Prasad And Anr. vs Lalit Kuar on 28 May, 1896<\/div>\n
Equivalent citations: (1896) ILR 18 All 403<\/div>\n
Author: K John Edge<\/div>\n
Bench: J Edge, Kt., Blennerhassett<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
John Edge, Kt., C.J.<\/p>\n
1. This was a suit in which the plaintiffs, alleging a mortgage of <\/p>\n
1854, claimed the relief of redeeming that mortgage. The defendant <\/p>\n
denied by his pleadings that there was any mortgage of 1854, and <\/p>\n
alleged that the plaintiffs held three mortgages over the lands, the <\/p>\n
first of which was made in 1859. The first Court was of opinion that <\/p>\n
there probably had been, a mortgage of 1854, and that the money duo <\/p>\n
under that mortgage was part of the consideration of the mortgage of <\/p>\n
1859, and dismissed the suit. If that finding is correct, it is <\/p>\n
needless to observe that the suit was properly dismissed. If the <\/p>\n
mortgage of 1859 was in substitution of the mortgage of 1854, part of <\/p>\n
the consideration being a fresh advance, as was found, and part of the <\/p>\n
consideration being, as thought by the Munsil, the money due under the <\/p>\n
mortgage of 1854, the mortgage of 1854 ceased to have any effect in law <\/p>\n
or in equity, except that the defendant, and not the plaintiffs, could, <\/p>\n
if necessary, rely on it as a shield. If the Munsif’s finding was <\/p>\n
correct, the plaintiff’s claim was a fraudulent one. They were <\/p>\n
endeavouring to get possession from a usufructuary mortgagee on payment <\/p>\n
or redemption of the mortgage which had ceased to exist and which had <\/p>\n
merged in a mortgage for a larger amount. However, this being a second <\/p>\n
appeal, it is not the finding of the first Court on questions of fact <\/p>\n
to which we have to attend and which is binding on us; it is the <\/p>\n
finding of the Court of First Appeal, which, according to law and <\/p>\n
according to the Code of Civil Procedure, is the finding of fact behind <\/p>\n
which we cannot go in second appeal. Where the finding of the first <\/p>\n
appellate Court is one of fact and not dependent on the construction of <\/p>\n
a document or of documents, we have a decision of the Privy Council to <\/p>\n
bind us, and that decision tells us that a High Court in such <\/p>\n
circumstances in second appeal must accept, and is bound by, the <\/p>\n
findings of fact, of the Lower Appellate Court. Now when I come to the <\/p>\n
finding of fact of the Lower Appellate Court, it is this, that the <\/p>\n
plaintiffs have failed to prove any mortgage of 1854. The Lower <\/p>\n
Appellate Court rightly applying the law to that finding dismissed the <\/p>\n
plaintiffs’ appeal which was before it. The plaintiffs have appealed <\/p>\n
here.\n<\/p>\n<\/p>\n
2. It has been contended by Mr. Foy that, notwithstanding that his <\/p>\n
clients the plaintiffs failed to prove their cause of action, I use the <\/p>\n
term advisedly, which they alleged in their plaint, namely, a cause of <\/p>\n
action, one essential ingredient of which was the proof of the mortgage <\/p>\n
alleged by them of 1854, they are entitled to a decree to redeem <\/p>\n
something. They cannot be entitled to a decree to redeem a mortgage <\/p>\n
which they had failed to prove. It was not their case that there was <\/p>\n
any other mortgage than the mortgage of 1854. I have said that I use <\/p>\n
the term “cause of action” advisedly, and I do. No lawyer in England is <\/p>\n
under any misapprehension since the ruling of the Court of Appeal in <\/p>\n
Read v. Brown L.R. 22 Q.B.D. 128, as to what the meaning of “cause of <\/p>\n
action” is. The Full Bench of this Court in 1894 had to consider what <\/p>\n
was the meaning of the term “cause of action” in the case of Murti v. <\/p>\n
Bhola Ram I.L.R. 16 All. 165. Five Judges of this Court adopted the <\/p>\n
view expressed by the Court of Appeal in England in Read v. Brown. One <\/p>\n
Judge of this Court took a slightly different view. In the case of <\/p>\n
Salima Bibic v. Sheikh Muhammad I.L.R. 18 All. 131, the meaning of the <\/p>\n
term “cause of action,” as employed in the Code of Civil Procedure, was <\/p>\n
considered by a Division Bench of the Court, which followed the view <\/p>\n
taken by the majority of the Court in Murti v. Bhola Ram and by the <\/p>\n
Court of Appeal in England in Read v. Brown.\n<\/p>\n<\/p>\n
3. The Legislature, conceiving, and I think rightly, that there <\/p>\n
ought to be some kind of procedure which plaintiffs and defendants <\/p>\n
should be bound to follow in suits in Civil Courts in India, by a <\/p>\n
variety of Regulations and Acts attempted to provide from time to time <\/p>\n
a Code of Civil Procedure. The present Code of Civil Procedure is known <\/p>\n
as Act No. XIV of 1882. In Section 50 of that Code the Legislature <\/p>\n
imperatively directed that plaints should contain certain particulars. <\/p>\n
The Legislature used the word “must,” and, as has been pointed out by a <\/p>\n
judgment of this Court, which we presume is known in these Provinces, <\/p>\n
when the Legislature uses “must” instead of “shall,” it uses a word <\/p>\n
which is most strongly imperative. Amongst the particulars which the <\/p>\n
Legislature has enacted that the plaint must contain is “a plain <\/p>\n
concise statement of the circumstances constituting the cause of action <\/p>\n
and where and when it arose.” Applying the decision in Read v. Brown <\/p>\n
and the decision of the Full Bench in Muni v. Bhola Ram to this case, <\/p>\n
one essential particular of the plaintiffs’ cause of action in this <\/p>\n
case was the mortgage of 1854. In the cause of action alleged in the <\/p>\n
plaint or as forming part of it there was absolutely no suggestion of <\/p>\n
any mortgage other than the mortgage of 1854. That mortgage has been <\/p>\n
found by the Lower Appellate Court not to be proved. I do not suppose <\/p>\n
that any one would suggest that when a plaintiff brings his suit for <\/p>\n
redemption of a mortgage and the fact is denied that that mortgage ever <\/p>\n
was made, the onus of proof is on the defendant. Any such suggestion as <\/p>\n
that would be to revolutionize all the principles upon which the rules <\/p>\n
of evidence have been based for centuries. It is not and never was any <\/p>\n
part of a defendant’s duty to make out a case for the plaintiff either <\/p>\n
by evidence or admission.\n<\/p>\n<\/p>\n
4. Now it was held by the majority of a Full Bench of this Court in <\/p>\n
1876, in the case of Ratan Kuar v. Jiwan Singh I.L.R. 1 All. 194, that <\/p>\n
plaintiffs who failed to prove the averments upon which their suit was <\/p>\n
based were not entitled to relief in respect of a portion of the <\/p>\n
property in suit of which the defendants admitted that they were <\/p>\n
mortgagees. That was a case in which the plaintiffs alleged a mortgage <\/p>\n
of 1842 for a certain amount. The defendants denied that mortgage and <\/p>\n
put it in issue, and on their side alleged a mortgage of the same year <\/p>\n
of different parcels of land and for a different amount. In Parmanand <\/p>\n
Misr v. Sahib Ali I.L.R. 11 All. 438, three Judges of this Court agreed <\/p>\n
in a judgment in which I endeavoured to point out where lay the onus of <\/p>\n
proof in a suit on a mortgage, and that if the plaintiff in a suit on a <\/p>\n
mortgage failed to prove the mortgage upon which he relied and which he <\/p>\n
alleged in his plaint, he could not succeed upon the mere fact that the <\/p>\n
defendant admitted that he was a mortgagee of the land. I also <\/p>\n
endeavoured to point out that that was the necessary corollary from a <\/p>\n
decision of the House of Lords in England, and that it was necessary <\/p>\n
for a plaintiff suing upon a mortgage to prove, if not admitted, that <\/p>\n
he had, when he brought his suit, a subsisting cause of action. In <\/p>\n
Zingar Singh v. Bhagwan Singh Weekly Notes 1889 p. 187, a Division <\/p>\n
Bench of this Court held in a suit which was for redemption of a <\/p>\n
mortgage that a plaintiff in such a suit is not entitled to succeed <\/p>\n
merely because the defendant fails to prove the case he sets up, unless <\/p>\n
the defendant’s pleadings show that on failure to prove a particular <\/p>\n
defence the plaintiff must be entitled to a decree. The right claimed <\/p>\n
there was redemption, and part of the cause of action was a mortgage <\/p>\n
alleged of 1852. On this point Straight, J., said: “If he (the <\/p>\n
plaintiff) failed to establish that mortgage, which he as the party <\/p>\n
seeking relief was bound to do and was the most competent person to do, <\/p>\n
then his suit must fail.”\n<\/p>\n<\/p>\n
5. Although the judgments of this Court upon these points are <\/p>\n
binding upon this Bench, it is just as well that in this case I should <\/p>\n
refer to one or two judgments of other Courts to show that the views <\/p>\n
which have been expressed and maintained of recent years by most of the <\/p>\n
Judges of this Court are not absurd views to the minds of others and <\/p>\n
are not views which are peculiar to the Judges of the High Court at <\/p>\n
Allahabad. In Krishna Pillai v. Rangasami Pillai I.L.R. 18 Mad. 462, a <\/p>\n
Division Bench of the Madras High Court said: “We agree with West. J., <\/p>\n
in Govindro Deshmukh v. Ragho Deshmukh in holding that the plaintiff <\/p>\n
failing to establish the mortgage upon which the suit was based should <\/p>\n
not be allowed to fall back on some other, as to which admissions may <\/p>\n
have been made by the defendants in other proceedings.” The cast which <\/p>\n
was referred to is reported in I.L.R. 8 Bom. 543. In that case West and <\/p>\n
Nanabhai Haridas, JJ.; held that “where a particular instrument is sued <\/p>\n
upon as the basis of a right, it is incumbent on a plaintiff to <\/p>\n
establish his case on that particular cause of action, and not on a <\/p>\n
cause of action merely bearing the same name or of the same description <\/p>\n
and so included in the same class.” That, in my opinion, is good law, <\/p>\n
and sound common sense and sound justice. If it were otherwise, a <\/p>\n
plaintiff might come into Court and seek to redeem a fictitious <\/p>\n
mortgage, and he might succeed on some other mortgage which was not in <\/p>\n
suit at all in the particular case. The object of Section 50 of the <\/p>\n
Code of Civil Procedure is to give information to the defendant as to <\/p>\n
the case which he has got to meet. In order to provide as far as <\/p>\n
possible that that information shall he truthfully given, the <\/p>\n
Legislature has enacted that the plaint must be signed and must be <\/p>\n
verified by some one possessing a knowledge of the facts. The <\/p>\n
Legislature had some object in so enacting Their Lordships of the Privy <\/p>\n
Council as far back as 1866 in Eshern Chunder Singh v. Shama Churn <\/p>\n
Bhutto 11 Moo. I.A. 7 at p. 24, said: “Their Lordships are obliged to <\/p>\n
disapprove of the decision come to by the High Court. They desire to <\/p>\n
have the rule observed that the state of facts and the equities and <\/p>\n
ground of relief originally alleged and pleaded by the plaintiff shall <\/p>\n
not be departed from.” The state of facts alleged by the plaintiffs in <\/p>\n
this case was a mortgage to the defendant made in 1854. The equities <\/p>\n
alleged were that the time had arrived for redemption of that mortgage <\/p>\n
and that the plaintiffs were entitled to redeem. The ground of relief <\/p>\n
was the right to redeem a mortgage of 1854, and no other mortgage. <\/p>\n
Applying that ruling of the Privy Council to this case, we should not <\/p>\n
be at liberty, even if we were not bound by the rulings of our own <\/p>\n
Court, to give the plaintiffs redemption of a mortgage which they had <\/p>\n
not asked to redeem, and to decree a suit in which all the facts going <\/p>\n
to the plaintiffs’ alleged cause of action had been found against <\/p>\n
them.\n<\/p>\n<\/p>\n
6. Mr. Foy relied upon two cases to be found in the Bombay Reports. <\/p>\n
The first of those cases was that of Lakshman Bhisaji Sirsekar v. Hari <\/p>\n
Dinkar Demi I.L.R. 4 Bom. 584, in which the Bombay High Court, of <\/p>\n
course not having before them the guidance of the decision in Read v. <\/p>\n
Brown in the Court of Appeal in England, apparently held that it was <\/p>\n
immaterial to a plaintiff’s cause of action on a mortgage that he <\/p>\n
failed to prove the mortgage which he alleged. I cannot help thinking <\/p>\n
that if the learned Judges who decided that case had had an opportunity <\/p>\n
of considering the judgments of the present Master of the Bolls and of <\/p>\n
Fry and Lopez, L. JJ., as to what constitued a cause of action, they <\/p>\n
never could have come to the decision at which they arrived. The other <\/p>\n
Bombay case was Chimanji v. Sakharam I.L.R. 17 Bom. 365. In that case a <\/p>\n
Division Bench of the Bombay High Court, with out considering what was <\/p>\n
the cause of action on which the plaintiffs came into Court and whether <\/p>\n
they had proved that cause of action, apparently followed the decision <\/p>\n
in Lakshman Bhisaji Sirsekar v. Hari Dinkar Desai I.L.R. 4 Bom. 584. So <\/p>\n
far as one can really understand the decision in the case reported in <\/p>\n
I.L.R. 17 Bombay, it would appear to be immaterial whether a plaintiff <\/p>\n
proved the cause of action which he alleged when suing on a mortgage or <\/p>\n
in respect of a mortgage, so long as he did not resort to dishonest <\/p>\n
artifices to procure evidence for his case and the position of <\/p>\n
mortgagor and mortgagee was admitted by the defendants., but not under <\/p>\n
the mortgage alleged by the plaintiff. If that were the law, Clause (d) <\/p>\n
of Section 50 of the Code of Civil Procedure might as well be struck <\/p>\n
out of the statute book.\n<\/p>\n<\/p>\n
7. In this case the rulings of this Court bind us as to the view of <\/p>\n
the law which we should follow; and whether I agreed with them or not I <\/p>\n
should feel myself bound by them and should not question them. Settled <\/p>\n
principles of law administered by a Court of Justice ought not to be <\/p>\n
lightly disturbed or doubt cast upon them without very sufficient <\/p>\n
reason. Not only do I see absolutely no reason for the slightest doubt <\/p>\n
as to the correctness of those decisions of this Court, but I entirely <\/p>\n
approve of them. They are in accordance with the views of the Privy <\/p>\n
Council; they are in accordance with the intentions of the Legislature <\/p>\n
and with principles of sound common sense and justice, according to <\/p>\n
which a man who brings a false case, or even brings a true case and <\/p>\n
fails to prove it, should not get a decree on a different cause of <\/p>\n
action from that alleged by him, and a cause of action which he has <\/p>\n
repudiated in the Court of First Instance and in the Court of first <\/p>\n
appeal, and only relies on as an off-chance in the Court of second <\/p>\n
appeal. I would dismiss this appeal with costs.\n<\/p>\n
\nBlennerhassett. J.\n<\/p>\n<\/p>\n
8. I concur.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-105996","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nSheo Prasad And Anr. vs Lalit Kuar on 28 May, 1896 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sheo-prasad-and-anr-vs-lalit-kuar-on-28-may-1896\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheo Prasad And Anr. vs Lalit Kuar on 28 May, 1896 - 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