Judgment :- This second appeal is directed against the judgment and decree dated 210. 2005 in A.S.No.63 of 2004 on the file of Subordinate Court, Tiruvarur confirming the judgment and decree dated 24. 2004 in O.S.No.16 of 2003 on the file of District Munsif Court, Mannargudi. 2. The parties to the second appeal are referred to in their respective position before the trial court. .3. Defendant in O.S.No.16 of 2003 is the appellant in the second appeal. Plaintiffs case .4. The suit in O.S.No.16 of 2003 has been preferred by the plaintiff/respondent against the defendant praying for a decree of recovery of possession of the plaint schedule Property. It was the case of the plaintiff that the suit property was purchased by way of two sale deeds dated 13. 2002 and 10. 2002. In the sale deed dated 10. 2002 there was a recital to the effect that the vendor had executed an "othi" in favour of the defendant/appellant for a sum of Rs.22,000/-. Originally the plaintiff filed a suit in O.S.No.64 of 2002 on the basis of sale deed dated 13. 2002 praying for a decree of injunction to restrain the defendant from interfering with his possession and enjoyment of the property. The said suit was subsequently dismissed for default on 110. 2002. After purchase of the property as per sale deed dated 10. 2002, the present suit has been filed for recovery of possession. It was the further contention of the plaintiff that he attempted to make payment of a sum of Rs.22,000/- as shown in the document dated 10. 2002, but the same was refused to be received by the defendant which made him to file the suit. .Plea of defendant:- 5. The suit in O.S.No.16 of 2003 was contested by the defendant by filing written statement wherein it was his contention that the suit, as framed was not maintainable in view of the judgment and decree in O.S.No.64 of 2002. It was his further contention that he had advanced a sum of Rs.22,000/- to the vendor of the plaintiff by name Ganesan and the said Ganesan had put him in possession of the property with liberty to enjoy the usufructs. It was his further contention that he had advanced a sum of Rs.22,000/- to the vendor of the plaintiff by name Ganesan and the said Ganesan had put him in possession of the property with liberty to enjoy the usufructs. According to the defendant the transaction was not an oral othi as he was only a tenant and he has been paying rent and his name was recorded as a tenant in pursuance of the proceedings dated 19. 2003. In such circumstances, the defendant prayed for dismissal of the suit, as according to him he was entitled to the benefits of a tenant as per the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969. Decree of trial Court:- .6. The trial court framed necessary is-sues and held that the proceedings dated 19. 2003 marked as Ex.B.7 was not binding on the plaintiff since it was obtained after the purchase of the property by the plaintiff and without making him as a party. With respect to the mortgage it was held that the defendant was a mortgagee and not a lessee and as the plaintiff came forward to tender the entire mortgage amount, the suit as framed was found to be maintainable, even though the mortgage has not been registered. In short, the learned trial Judge decreed the suit as prayed for. .Finding in First Appeal:- 7. The judgment and decree dated 24. 2004 in O.S.No.16 of 2003 was taken in appeal and the learned Appellate Judge confirmed the finding with respect to Ex.B.7 and further found that the relationship between the parties were one of mortgagor and mortgagee and not lessor and lessee. Accordingly the learned Appellate Judge confirmed the judgment and decree of the trial court. .8. The judgment and decree dated 210. 2005 in A.S.No.63 of 2004 is the subject matter of the present second appeal. .Contention of the Appellant 9. The learned counsel for the appellant/defendant contended that the present suit filed by the plaintiff praying for a decree of recovery of possession was not maintainable for the following reasons:- .(a) The transaction in question was found to be a mortgage and unless and until the plaintiff files a comprehensive suit as provided under Order XXXIV Rule 1 of the Code of Civil Procedure, no relief could be granted to the plaintiff. .(b) The suit was also barred under Order IX Rule 9 of the Code of Civil Procedure on account of the earlier judgment and decree dated 15. 2002 in O.S.No.64 of 2002. .10. According to the learned counsel for the defendant, even though the mortgage (Othi) was not a registered one, the same was found to be made mentioned in the registered document executed by the vendor Ganesan in favour of the plaintiff and as the same was found mentioned in the registered document, the said mortgage satisfies the ingredients of a valid mortgage. It was further contended that Order XXXIV of the Civil Procedure Code provides that in a suit for mortgage initially the court was obliged to pass a preliminary decree followed by a final decree as per Order XXXIV Rule 3 of the Code of Civil Procedure. In the event of filing a suit for redemption of mortgage it would be possible for the defendant to come up with a case regarding the amount due to him and on payment of the said amount, it would be possible for the plaintiff to obtain the final decree. However in a suit for recovery of possession, there was no opportunity for the defendant/mortgagee to submit the details of the actual amount due to him and as such the present suit was clearly not maintainable. .Contention of respondent:- .11. Learned senior counsel appearing on behalf of the respondent contended that the present suit was maintainable as the amount due to the defendant has already been deposited by him before the trial court and except the right to collect the said amount the defendant has no other right in respect of the suit property. With respect to the contention that the present suit was not maintainable in view of the earlier decision in O.S.No.64 of 2002, the learned Senior Counsel contended that the earlier suit was only a suit for injunction and it has nothing to do with the right claimed by the plaintiff in the present suit and as such there was no bar for the subsequent suit for recovery of possession. .Substantial question of law:- 12. The following substantial question of law arises for consideration in the present second appeal. .Substantial question of law:- 12. The following substantial question of law arises for consideration in the present second appeal. "(a) Whether a subsequent suit for a comprehensive decree for possession attracts the bar as contained in Order IX Rule 9 of the Code of Civil Procedure, when the cause of action in the earlier suit was substantially different from the later suit? (b) Having taken a defence throughout the proceedings before the trial court as well as be-fore the first appellate court that the transaction was only a tenancy, whether it was permissible for the defendant to contest the second appeal on the basis that the suit for possession in the absence of a comprehensive suit for redemption of mortgage was not maintainable? Statutory Bar under Order IX Rule 9. 13. It is found from the pleadings as well as documents marked in the suit that the suit property was purchased by the plaintiff as per Ex.A.1 dated 13. 2002 and Ex.A.2 dated 10. 2002. In Ex.A.1 there was no mention about any mortgage or othi and it was only in the document in Ex.A.2, reference was made about the othi created for a sum of Rs.22,000/-taken by Mr.Ganesan, the vendor of the plaintiff from the defendant. The earlier suit in O.S.No.64 of 2002 was filed for a decree of injunction to restrain the defendant from interfering with the possession of the plaintiff with respect to the property in Ex.A.1. The said suit was dismissed for default as per Ex.B.4 on 110. 2002. A perusal of the earlier proceedings in O.S.No.64 of 2002 shows that the issue regarding the right of the plaintiff to obtain possession of the property was not the subject matter in the said suit. In fact the othi was made mentioned only in Ex.A.2 dated 10. 2002 and admittedly the suit in O.S.No.64 of 2002 was not in respect of the property in Ex.A.2. Merely because the earlier suit for injunction has been dismissed for default, it cannot be said that the subsequent suit for possession was not maintainable. The issue to be decided in the earlier suit in O.S.No.64 of 2002 and the subsequent suit were entirely different. Merely because the earlier suit for injunction has been dismissed for default, it cannot be said that the subsequent suit for possession was not maintainable. The issue to be decided in the earlier suit in O.S.No.64 of 2002 and the subsequent suit were entirely different. The cause of action for filing the earlier suit was the attempted trespass made by the defendant in the property covered under Ex.A.1 and as such it can-not be said that the plaintiff was not entitled to institute the suit for recovery on the basis of the subsequent document dated 10. 2002. 14. Order IX Rule 9 bars fresh suit in respect of the same cause of action in case the earlier suit was dismissed as indicated in Order IX Rule 8 of Code of Civil Procedure. The term "same cause of action" assumes significance in as much as the bar under Order IX Rule 8 applies to a later suit only in respect of the very same cause of action. In case the cause of action in the later suit was altogether different, which has nothing to do with the cause of action in the earlier suit, the statutory bar has no application to such later suits. It was only with a view to curb the tendency of filing multiple suits, on the basis of the very same cause of action, successively even after the dismissal of the earlier suit that such a pro-vision has been introduced. It was not the intention of the Legislature to bar the subsequent suits between the parties and the same was evident by the qualifying words," same cause of action". Therefore everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC. 15. The Apex Court in Gaya Municipality Vs. Therefore everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC. 15. The Apex Court in Gaya Municipality Vs. Ramprasad Bhat (1967 (2) SCWR 823) explained the scope of Order IX Rule 9 thus: “In our view, the present suit is not barred by O.9 rule 9, C.P.C. The principles for determining whether the causes of action in two suits are different or not were laid down by the Privy Council in Md.Khalil Khan v. Mahbub Ali Mian, A.I.R. 1949 P.C. 78 and referred to with approval by this Court in Suraj Rattan Thirani v. Azamabad Tea Company, A.I.R. 1965 S.C.295. The only question is whether applying these principles the High Court was right in holding that the cause of action was different in the present suit from that in the 1941 suit. It seems to us that if the two plaints are analysed closely it would appear that in the first suit the cause of complaint was a threat by the defendant municipality to interfere with the alleged rights of the plaintiff by constructing stall immediately to the south of his house. At that time no stalls had been constructed and the alleged rights of the plaintiff had not been actually infringed. During the course of the suit the construction of the stalls was commenced, and the same was completed, at some appreciable distance from the house of the plaintiff, after the suit was dismissed for default. Further the complaint in the 1941 suit was that the right to use the footpath just south of the municipal drain was being infringed which foot path was alleged to have been used by pedestrians and customers of the shop of the plaintiff; there was no allegation that his right to access to Halliday Road was being threatened or infringed. In the present suit what is substantially alleged is that the plaintiff had a right to access to the house from all sides of the said plot No.11459 in question abutting and lying in front of the plaintiffs house. It will also be noticed that the present plaint alleges a permanent deprivation of plaintiffs alleged right of access to Halliday road. It will also be noticed that the present plaint alleges a permanent deprivation of plaintiffs alleged right of access to Halliday road. The constructions are of permanent nature, and, in our view, a fresh cause of action arose when the stalls were constructed in 1942." .16. The cause of action for the earlier suit was on account of the attempted trespass in respect of A schedule property. But the cause of action in the subsequent suit was entirely different and the relief was for a decree of recovery of possession. Therefore I am of the view that the subsequent suit in O.S.No.16 of 2003 was not barred under Order IX Rule 9 in view of the dismissal of the earlier suit in O.S.No. 64/02. Therefore the first substantial question of law is answered against the defendant. .Maintainability of the suit:- 17. Before the trial court, the contention of the defendant was that he was not a usufructuary mortgagee and his possession was only as a tenant under Ganesan, the vendor of the plaintiff. In order to prove that his status was only that of a tenant, the defendant has also marked Ex.B.7 dated 19. 2003. The said proceeding was instituted against one Shanmuga Sundaram stated to be one of the sons of late Ganesan. It was filed originally against Mr.Ganesan and after his death one of his le-gal heirs namely, Shanmuga Sundaram, was impleaded and he represented the estate of Ganesan. The document in Ex.B.7 was disbelieved by the trial court on the ground that the plaintiff was not a party to the said proceedings and there was no justification for impleading only one of the children of late Ganesan. It was also found by the learned trial Judge that the petition in Ex.B.7 was filed only after the institution of the suit and as such the same was not binding on the plaintiff. The learned trial Judge also found that Exs.B.16 to B.23 produced on the side of the defendant to show that he has been paying rent to Shanmuga Sundaram were fraudulent documents made up for the case and all the signatures in those receipts were found to be made on the -very me date and which also differed. The learned trial Judge also found that Exs.B.16 to B.23 produced on the side of the defendant to show that he has been paying rent to Shanmuga Sundaram were fraudulent documents made up for the case and all the signatures in those receipts were found to be made on the -very me date and which also differed. Therefore on the basis of Exs.B.13 to B.15 it was the case of the defendant that he was not a mortgagee but only a tenant in respect of the suit property. In such circumstances, the learned trial Judge held that the defendant was a usufructuary mortgagee and that the suit filed by the plaintiff was clearly maintainable. 18. The learned appellate Judge independently considered the issue and after taking note of the contention of the defendant that he was only a tenant, the learned Appellate Judge observed that the plaintiff has proved his case for recovery of possession and accordingly confirmed the judgment and decree of the trial court. With respect to Ex.B.7, the learned appellate court observed that the said document was not binding on the plaintiff as the same was made after the purchase of the property by the plaintiff and the plaintiff was not a party to the said proceeding. The learned appellate Judge also found that the relationship between the plaintiff and the defendant was only a mortgagor and mortgagee and not a lessor and lessee and as such the plea made in Ex.A.10 was false. It was found from the document in Ex.A.2 that the transaction was referred to as Othi. The amount advanced by the defendant to the vendor of the plaintiff was also mentioned in the document. .19. As per Section 59 of the Transfer of property Act where the principal money secured was One Hundred Rupees or upwards, a mortgage other than a mortgage by deposit of title deeds could be effected only by a registered instrument signed by the mortgager and attested by atleast two witnesses. Therefore it implies that a valid mortgage other than a mortgage by deposit of title deed, consideration of which was above One hundred rupees should be by way of a registered instrument. Such document shall be signed by the mortgager in the presence of atleast two witnesses and the same shall also be registered. Therefore it implies that a valid mortgage other than a mortgage by deposit of title deed, consideration of which was above One hundred rupees should be by way of a registered instrument. Such document shall be signed by the mortgager in the presence of atleast two witnesses and the same shall also be registered. The Othi referred to in Ext.A2 was admittedly for a consideration of Rs.22000/- and it was not the case of the defendant that the said Othi was a registered one. In fact the plea of the defendant all along was to the effect that the contention of oral Othi as made by the plain-tiff was incorrect and the defendant was only a tenant entitled to the benefits of the Tamil Nadu Agricultural lands (Record of Tenancy Right) Act 1969. The claim of the defendant was not on the basis of a mortgage and he was all along projecting a case of tenancy and for the purpose of his plea as a tenant, the defendant also relied on the document in Ext.B7. In fact the consistent case of the defendant was to the effect that there was no mortgage, but his status was only a tenant. No such plea of mortgage was taken before the Trial Court or before the First Appellate Court and for the first time such a contention was taken in the Second Appeal. There was no factual foundation for the plea of mortgage and the non-maintainability of the suit for recovery of possession in the written statement filed by the defendant. The defendant opposed the prayer in the suit on the ground of statutory bar under Order IX Rule 9 as well as on the ground that he was a statutory tenant as evident by the proceedings in Ex.B7 and the suit was resisted only on those two grounds. For the first time in the Second Appeal such a plea has been taken and in the absence of factual foundation for such a plea in the written statement, it was not open to the defendant to canvass for a totally different case in the second appeal. The defendant cannot take the plea of a mortgagee on the basis of admission of the plaintiff and a suit for redemption which was otherwise not maintainable cannot be made maintainable on the basis of a stray admission made by the plaintiff. The defendant cannot take the plea of a mortgagee on the basis of admission of the plaintiff and a suit for redemption which was otherwise not maintainable cannot be made maintainable on the basis of a stray admission made by the plaintiff. Admittedly there was no instrument to show the mortgage other than the averments made in the document in Ext.A2 when the case of the defendant him-self was not on the basis of a mortgage, he cannot set up a case on the basis of such mortgage for the first time in the Second Appeal. .20. Suit in O.S.No. 16/03 was laid by the plaintiff after depositing a sum of Rs.22000/-as found in Ext.A2 When there was no valid mortgage within the meaning of Sec.59 of the Transfer of Property Act the plaintiff cannot file a suit for redemption of mortgage. It was not the case of the defendant in his written statement that he had spent considerable amount to maintain the suit property and as such only after passing preliminary decree in a suit for redemption and after calculating the amount due to the defendant and the payment of such amount only a final decree could be passed and as such the suit for recovery of possession was not maintainable. It was the contention of the learned counsel for the defendant that there was no attempt made by the trial court to determine the amount due to the defendant and such determination was possible only in case of filing a suit under Order XXXIV Rule 1 of the Code of Civil Procedure. However the same was not the contention of the defendant before the trial court as well as before the First Appellate Court It was not even contended by the defendant before the court below that considerable amount was spent by him for maintaining the suit property and as such he was entitled to have the said amount as a pre-condition for delivery of property to the plaintiff. In fact the case of the defendant was to the effect that he has been paying the rent to the Vendor of the plaintiff on the basis of the tenancy in his favour. In fact the case of the defendant was to the effect that he has been paying the rent to the Vendor of the plaintiff on the basis of the tenancy in his favour. Such being the case of the defendant before the court below there was no basis for the contention of the learned counsel for the defendant before this court that the suit as framed was not maintainable and the plaintiff should have filed a suit for redemption of mortgage. Therefore there is no merit in the contention of the learned counsel with regard to the maintainability of the suit. 21. The Learned counsel for the defendant/appellant relied on the judgment of the Apex Court in Padma Vithoba v. Mohd.Multani AIR (1963 Supreme Court 70) for his contention regarding non maintainability of the suit for possession. In Padma Vithoba case cited supra the possession of the property was only as a mortgagee and it was also the admitted case in the said matter that the possession was only on the basis of a deed of usufructuary mortgage executed by the land owner. It was only in such factual context, the appellate court observed that the suit was only a suit for ejectment and the same was not filed for redemption of mortgage and it would be a ground for dismissal of the suit. It is worth while to note that in the said case, the appellate court while considering the time spent for the litigation, decided to consider the rights of the parties on the footing that the suit was to redeem the usufructuary mortgage without driving the parties to a separate suit. 22. In the present case it was not the case of the defendant that there was a mortgage deed executed by the vendor of the plaintiff in writing and that there was a registered instrument evidencing the transaction of usufructuary mortgage so as to compel the plaintiff to file a suit for redemption, as provided under Order XXXIV of the Code of Civil Procedure. When it was the case of the defendant himself that he was only a tenant, necessarily a suit for possession was maintainable. The plaintiff was obliged to pay the amount and to get possession of the property in view of the recitals as contained in Ex.A.2. When it was the case of the defendant himself that he was only a tenant, necessarily a suit for possession was maintainable. The plaintiff was obliged to pay the amount and to get possession of the property in view of the recitals as contained in Ex.A.2. The suit for recovery of possession has been filed by the plaintiff as early as in 2002 and in the written statement filed by the defendant it was not his case that the suit as framed was not maintain-able and the remedy of the plaintiff was only to file a suit for redemption. It was only before this court that the appellant has come up with such contention. It is not open to the defendant to come up with a new case before this court in a second appeal under Section 100 of the Code of Civil Procedure. Accordingly, the second substantial question of law is also answered against the defendant. .23. In Sant Lal Jain v. Avtar Singh ( AIR 1985 SC 857 = (1985) 98 L.W. 735), the Apex Court observed that the attempt of the court should be to avoid multiplicity of suits and held thus:- ."7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind at-tempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction." 24. In M/s. R.N. Jadi & Brothers (2007 (9) Scale 202) the Apex Court considered the substantive justice vis-à-vis procedural and observed thus: "9. All the rules of procedure are the handmaid of justice. In M/s. R.N. Jadi & Brothers (2007 (9) Scale 202) the Apex Court considered the substantive justice vis-à-vis procedural and observed thus: "9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 10. The mortality of justice at the hands of law troubles a judges conscience and points an angry interrogation at the law reformer. 11. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel other-wise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar) 12. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth) A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh.) 13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." 25. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh.) 13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." 25. The scope and ambit of jurisdiction under Section 100 of the Code of Civil Procedure came up for consideration before the Apex Court in Hero Vinoth vs. Seshammal reported in 2006 (5) SCC 545 = 2007-2-L.W. 945, and after considering catena of decisions on the said point, the Apex Court in paras 19 and 20 held thus:- "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence." 20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. (See Kondiba Dagadu Kadam v. Savitribai Sopan Gujar.)" 26. Even though it was contended by the learned counsel that the order which was the subject matter of ExB.7 has already been set aside by the revenue authorities as per order dated 33. 2007, I am not inclined to consider the said document as the same has not been marked in the manner known to law by way of filing an application to receive additional evidence. 27. For the reasons aforesaid, I am of the view that there was no necessity to file a suit for redemption of mortgage and the suit filed by the plaintiff for recovery of possession was maintainable and the suit was also not barred on account of the statutory bar as provided under Order IX Rule 9 of CPC. 28. In the result the Second Appeal is dismissed by confirming the concurrent judgment and decree of the court below. No Costs.