Wednesday, 19 February 2014

A party cannot be prohibited from taking alternate and inconsistent pleas

 In the light of the views taken by the Apex Court and this High Court that a party cannot be prohibited from taking alternate and inconsistent pleas, the impugned order must be held to be bad in law and therefore, quashed and set aside. There is nothing in law that enables the trial Court direct the party to plead the case in a particular direction and close down all remaining fronts.Civil Procedure Code, O. 6 R. 2 – Inconsistent pleas/defences in suit not prohibited by law.

Even inconsistent stands are not prohibited by law and allowed to be pleaded.  Even the Court will not be able to object to leading the evidence on inconsistent pleas and the party will be doing so at its own risk and peril.  There is no provision that enables the Court to dictate the party to elect the ground of attack or defence the party should persist by waiving other plea or ground of attack and defence, which is either inconsistent or in conflict with the one persisted.  When a party takes inconsistent pleas, ordinarily, it may abandon/destroy one, for success in another.  In a given case, two conflicting and inconsistent pleas may even destroy both the pleas, cases, grounds of attack or grounds of defence.  In a given case, party may sacrifice one for the success in the alternate plea.  This is a matter to be considered when the court enters the zone of appreciation of evidence and grant of relief in accordance with the case established.  There is nothing either in the Civil Procedure Code or in the Evidence Act, that prevents a party from pleading alternate pleas, whether consistent, complimentary or inconsistent and conflicting.  There is nothing in law that enables the trial court direct the party to plead the case in a particular direction and close down all remaining fronts.  
[Held, that the impugned order of the trial court directing defendant no. 1 to file pursis and elect one of the pleas as to whether they are owners by agreement of sale or they are owners by adverse possession in the suit filed by plaintiffs for declaration of title and possession of agricultural lands was bad in law and therefore quashed and set aside.

Bombay High Court
Dadabhau Shankar Ghodke And Ors. vs Mohanlal Kanhyalal Agrawal And ... on 17 June, 2002
Equivalent citations: (2003) 1 BOMLR 676, 2003 (1) MhLj 446

N.V. Dabholkar, J.

1. Heard learned counsel for the respective parties.
2. Rule. By consent, Rule is made returnable forthwith.
3. This revision petition arises out of the order passed on 14-1-2002 by the learned II Joint Civil Judge J.D. Jalna below Exhibit 111 in Regular Civil Suit No. 547 of 1996. Limited details regarding facts which are not disputed and requisite for present petition, are as follows.
Respondents are plaintiffs. They filed the suit for declaration of title and possession of agricultural lands. They claimed that the properties were owned by their grand father and inherited by them through their uncle, since father predeceased uncle and thereafter, the uncle acted as Karta of the joint family.
Defendants approached with a plea that uncle and eldest brother of plaintiff (who is now dead) had agreed to sale the suit land in favour of defendant No. 1. In the alternative, it is claimed that if the isar pavati has not passed the title in favour of defendants, they have become owners by adverse possession.
4. After conclusion of recording of evidence, before the arguments could be opened by both the lawyers, application Exhibit 111 was filed by plaintiff requesting the Court to direct defendants to elect one of the pleas i.e. either their right to retain possession under Section 53A of the Transfer of Property Act on the basis of agreement of sale or to claim their title on the basis of adverse possession.
After considering the case law cited before him, the learned Judge directed defendant No. 1 to file purshis and elect one of the pleas as to whether they are owners by agreement of sale or they are owners by adverse possession.
5. Before opening his arguments 1 had categorically asked Shri Deshpande, Advocate, who is trying to defend the impugned order, to point out a provision either under the Civil Procedure Code or Indian Evidence Act that prohibits a party from taking inconsistent pleas/defences or that prohibits a party to lead evidence to prove such inconsistent pleas or the provision which empowers the Court to direct a party to elect one of the inconsistent pleas and shut his case and evidence so far as the other pleas. Shri Deshpande concedes that there is no such specific provision but the case law and judicial pronouncements by precedent, according to Advocate Deshpande, have disallowed inconsistent pleas and expected the party to elect one out of the inconsistent pleas.
Practically the same case law, as relied upon before the trial Court is cited before me.
6. In the case of C. Mohammed v. Anantchari, AIR 1988 Kerala 293, it was observed by that High Court;
"Ownership and easement rights are inconsistent and cannot co-exist in the same person. As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement, it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. Therefore, where the plaintiff claiming a prescriptive easement right over the pathway leading to his property filed a suit for mandatory and perpetual injunction directing the defendant to restore the pathway and restrain him from damaging it and subsequently admitted that the property through which he claimed the right of way belonged to him, his case that he had prescribed easementary right in the property cannot be accepted and therefore the courts below were justified in dismissing the suit."
In the matter of Arjan Dev v. Om Parkash, AIR 1992 Delhi 202, defendant claimed to be occupying the house as a member of joint family as brother of plaintiff and after marriage he started his kitchen separately, although continued to stay in the same house with the permission of plaintiff. It was held by Delhi High Court that it did not give any right of easement or interest in the property to defendant. The plea of title by adverse possession was also turned down because defendant never claimed suit property to be his exclusive property or advanced any hostile title to that of plaintiff.
7. The decision of the Kerala High Court in C. Mohammed's case (supra) can be distinguished on facts, because the party therein was claiming ownership of the land as well as easement over the same land and since in case of claim of easement dominant and servient tenement cannot be in the same person, the two pleas were held to be inconsistent. So fur as the case before us is concerned, whether two pleas raised by defendant are inconsistent or not, itself can be a subject of debate. Defendants have claimed right to retain possession on the basis of agreement of sale because they have right to get their title perfected by asking specific performance of the agreement in their favour. Thus they claimed to be prospective owners entitled to retain possession, which is lawfully obtained. In the alternative, they pray ownership by adverse possession, because if the Court arrives at a conclusion that by the agreement of sale their title is not perfected and if the true owner after knowing it that the right to seek specific performance is lost has kept quiet, defendants shall plead the starting point of adverse possession from then onwards. Thus, basically, the pleas raised by defendants in the present matter do not appear to be inconsistent as in the case dealt with by Kerala High Court.
8. The case before Delhi High Court Arjan Dev's case - (supra) was also regarding permissive use and adverse possession and hence it was held that these two pleadings cannot co-exist together.
9. So far as the decision in the case of Smt. Indubai and Anr. v. Jawaharlal and Anr., is concerned, the Court has
examined paragraphs 8 and 8(a) of the plaint and arrived at a conclusion in paragraph No. 7 of the judgment that the amendment in paragraph No. 8(a) was inserted by plaintiff to clarify nature of entry of defendant on the plot. This was held to be natural conduct on the part of plaintiff, who had initially claimed defendant to be encroacher and subsequently, it was explained that initially he was permitted to occupy but lateron he continued to occupy. In fact, in this case also, learned Judge observed that the law permits alternative relief or inconsistent allegations, but it does not permit inconsistent pleas.
10. In the aforesaid three cases, the respective High Courts were not confronted with the issue, if the Court can direct a party, either while leading its evidence or while arguing its case, to confine its evidence and argument to only one of the two inconsistent pleas. The observations that inconsistent pleas cannot survive are during the course of appreciation. When a party takes inconsistent pleas, ordinarily, it may abandon/destroy one, for success in another. In a given case, two conflicting and inconsistent pleas may even destroy both the pleas, cases, grounds of attack or grounds of defence. In a given case, party may sacrifice one for the success in the alternate plea. This is a matter to be considered when the court enters the zone of appreciation of evidence and grant of relief in accordance with the case established. There is nothing either in the Civil Procedure Code or in the Evidence Act, as conceded by Shri Deshpande, Advocate that prevents a party from pleading alternate pleas, whether consistent, complimentary or inconsistent and conflicting.
The court can prevent a party from adducing evidence in case it arrives at a conclusion that evidence sought to be adduced is irrelevant. If alternate and even inconsistent stands are not prohibited by law and allowed to be pleaded, even the Court will not be able to object to leading the evidence on inconsistent pleas and the party will be doing so at its own risk and peril. But there is no provision that enables the Court to dictate the party to elect the ground of attack or defence the party should persist by waiving other plea or ground of attack and defence, which is either inconsistent or in conflict with the one persisted.
11. In order to supplement his arguments that inconsistent pleas are allowed to be taken and party can enjoy the relief that may be granted by the Court by accepting either of the pleas, Advocate Shri Patil has relied upon the observations of the Supreme Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors., AIR (38) 1951 SC 777, wherein it is observed;
"A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative."
In this matter, which was suit for specific performance of contract, defendant denied the contract and pleaded that money was taken by him as loan. It was held that the Court could pass the decree for recovery of loan in favour of plaintiff, in view of admission of defendant, although such case was inconsistent with the pleadings in the plaint.
In the case of Mudra Salt and Chemical Industries v. Collector, Thane, 2001(3) Mh.L.J. 151, while considering the application for amendment, this Court allowed the amendment. The suit was filed for negative declaration based on title that defendants had no right, title or interest in the suit property. Further declaration was sought that allotment of the said land by defendant No. 1 in favour of other defendants was illegal and not binding on plaintiff. Defendants denied the claim of plaintiff. Prior to framing of issues, plaintiff moved application for amendment to the effect that plaintiffs were owners of the suit land by adverse possession. The trial Court rejected the application on the ground that inconsistent plea was sought to be introduced. While allowing the revision petition, the learned Single Judge of this Court has held that it is open for the party to raise even mutually inconsistent pleas.
12. In the light of the views taken by the Apex Court and this High Court that a party cannot be prohibited from taking alternate and inconsistent pleas, the impugned order must be held to be bad in law and therefore, quashed and set aside. There is nothing in law that enables the trial Court direct the party to plead the case in a particular direction and close down all remaining fronts.
13. The revision is, therefore, allowed. The impugned order is quashed and set aside. The learned trial Judge should proceed to dispose of the suit in accordance with law, without directing the parties to elect or shut any of the pleas.
14. Rule is accordingly, made absolute. No order as to costs.
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