Bombay HC: Whether the court can keep infructuous suit pending in the hope that a new cause of action may later be introduced by amendment?

 Amendment plea rejected

One of the respondent’s key arguments was that he had moved, or intended to move, for amendment of the plaint to incorporate a prayer for renewal of lease. The High Court rejected this line of defence​

The court noted that as on the date of the impugned order, namely 11 November 2022, no amendment application was before the trial court. It further recorded that the chamber summons for amendment was filed only on 30 June 2025, almost three years later, and till date the plaint did not contain any prayer for renewal.​

The court held that whether a suit has become infructuous must be decided on the basis of the cause of action actually pleaded, not on the basis of a party’s future plans. A dead suit, the court said in substance, cannot be kept alive indefinitely in the hope that a new cause of action may later be introduced by amendment.

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Ratio of the judgment

The ratio of the decision is that a civil suit whose pleaded cause of action has disappeared because of a supervening event may be dismissed as infructuous under Section 151 CPC, provided no specific provision of the Code covers the situation. A court cannot retain such a suit merely because dismissal would bring an interim order to an end.​

The decision also reinforces that future or proposed amendments cannot justify retaining an otherwise infructuous suit on the file. The court must examine the reliefs actually claimed and the cause of action actually pleaded as on the relevant date.

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Civil Court Can Use Section 151 CPC To Dismiss Suit As Infructuous If Cause Of Action Ceases: Bombay High Court

Union of India & Ors. v. Maheshkumar Gordhandas Garodia, Civil Revision Application (ST.) No. 23914 of 2023, decided on 17 March 2026​

The Bombay High Court has reaffirmed a basic but often ignored procedural principle: when the very cause of action in a suit disappears because of subsequent events, the court should not keep the suit alive merely because an interim order is operating. In Union of India & Ors. v. Maheshkumar Gordhandas Garodia, Justice Sandeep V. Marne held that a lease suit seeking declaration of subsistence of a 99-year lease became infructuous once the lease itself expired on 14 October 2016, and therefore the suit deserved dismissal under Section 151 of the Code of Civil Procedure, 1908.

Read full judgment here: Click here.​

Case details

The case was decided by the High Court of Judicature at Bombay in Civil Revision Application (ST.) No. 23914 of 2023. The judgment was reserved on 5 March 2026 and pronounced on 17 March 2026.

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Whether S 10 of CPC relating to stay of suit bars the court to entertain subsequent suit and to pass interlocutory orders in that suit?

By virtue of Section 10 Code of Civil Procedure, a Court is prohibited from proceeding with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned therein. This Court has explained that the object of the prohibition contained in Section 10 Code of Civil Procedure is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent findings. However, this Rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have also consistently held that Section 10 Code of Civil Procedure does not create a bar to the passing of interlocutory orders including those of injunction. These principles are succinctly summarised by this Court in the case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. MANU/SC/0350/1998 : (1998) 5 SCC 69. Therein, this Court was, of course, considering the applicability of bar Under Section 10 to summary suit Under Order XXXVII of Code of Civil Procedure but, while explaining the connotation of the expression "trial" in Section 10 Code of Civil Procedure, observed as under: {Para 17}

8. Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to "proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit". The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a Rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the "trial" of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word "trial" in Section 10 is not used in its widest sense.

18. The above principles of law, with necessary variations, when applied to the present case, lead to the position that even if final determination of the question of maintainability (in case the constitutional validity of the impugned provision is to be decided) may depend upon the decision of Larger Bench, the supplemental proceedings in the present suit, particularly those relating to the prayer of interim relief, cannot be put on hold.

IN THE SUPREME COURT OF INDIA

Original Suit No. 1 of 2021

Decided On: 11.05.2023

State of Meghalaya Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Dinesh Maheshwari and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/0559/2023.

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What will effect of remand of the civil case by the appellate court?

That once the order of remand is passed by the Appellate Court, it implies a reversal of the decision of the lower Court and reopens the whole case for retrial by the lower Court except in regard to matters decided by the order of remand. In the case of United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. MANU/SC/0551/2000 : AIR 2000 SC 2957 has explained effect of remand in paragraph no. 16 of its judgment, thus;

"16 But, it is now well settled that an order of remand by the appellate Court to the trial Court which had disposed of the suit revives the suit in full except as to matters, if any decided finally by the appellate Court. Once the suit is revived, it must, in the eye of the law, be deemed to be pending from the beginning when it was instituted. The judgment disposing of the suit passed by the single Judge which is set aside gets effaced altogether and the continuity of the suit in the trial Court is restored, as a matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise serious questions as to limitation would arise. In fact, if any evidence was recorded before its earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded."{Para 12}

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 730 of 2016

Decided On: 05.08.2019

 Sonabai Sahebrao Pathrud Vs.  Bhausaheb Ganpati Gaikwad and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: MANU/MH/2170/2019,2020(2) MHLJ 206

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