Saturday, 17 August 2019

Tests laid down by Supreme Court for determining whether alternative plea raised by plaintiff was permissible

 Reference may also be made to the decision of this
Court in J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and
Anr. (2002) 3 SCC 98 where this Court formulated the
following tests for determining whether the alternative plea
raised by the plaintiff was permissible:
“To sum up the gist of holding in Firm Sriniwas
Ram Kumar's case: If the facts stated and
pleading raised in the written statement, though by
way of defence to the case of the plaintiff, are
such which could have entitled the plaintiff to a
relief in the alternative, the plaintiff may rely on
such pleading of the defendant and claim an

alternate decree based thereon subject to four
conditions being satisfied, viz., (i) the statement of
case by defendant in his written statement amounts
to an express admission of the facts entitling the
plaintiff to an alternative relief, (ii) in granting such
relief the defendant is not taken by surprise, (iii) no
injustice can possibly result to the defendant, and
(iv) though the plaintiff would have been entitled to
the same relief in a separate suit the interest of
justice demand the plaintiff not being driven to the
need of filing another suit.”
18. The plaintiff-appellant in the case at hand had set up a
specific case that the defendant as also his legal
representative after his demise were occupying the suit
premises as licensees which licence had been validly
terminated. In the reply to the notice the case of the
defendants was that were in occupation of the suit premises
not as licensees but as tenants. The plaintiff was, therefore,
entitled on that basis alone to ask for an alternative relief of
a decree for eviction on the grounds permissible under the
Rent Control Act. Such an alternative plea did not fall foul if
any of the requirements/tests set out in the decision of this
Court in J.J. Lal’s case (supra). We say so because the
written statement filed by the defendant contained an
express admission of the fact that the property belonged to
the plaintiff and that the defendants were in occupation

thereof as tenants. At the trial Court also the question
whether the defendants were in occupation as licencee or as
tenants had been specifically put in issue thereby giving the
fullest opportunity to the parties to prove their respective
cases. There was no question of the defendants being taken
by surprise by the alternative case pleaded by the plaintiff
nor could any injustice result from the alternative plea being
allowed and tried by the Court. As a matter of fact the trial
Court had without any demurrer gone into the merits of the
alternative plea and dismissed the suit on the ground that
the plaintiff had not been able to prove a case for eviction of
the defendants. There was thus not only a proper trial on all
those grounds urged by the plaintiff but also a judgment in
favour of the defendant respondents. Last but not the least
even if the alternative plea had not been allowed to be raised
in the suit filed by the appellant he would have been certainly
entitled to raise that plea and seek eviction in a separate suit
filed on the very same grounds. The only difference may
have been that the suit may have then been filed before the
Court of Small Causes but no error of jurisdiction was
committed in the instant case as the finding recorded by the

Civil Court was that the defendants were licensees and not
tenants. Superadded to all these factors is the fact that the
appellate Court had granted relief to the appellant not in
relation to the alternative plea raised by him but on the
principal case set up by the plaintiff. If the plaintiff
succeeded on the principal case set up by him whether or not
the alternative plea was contradictory or inconsistent or even
destructive of the original plea paled into insignificance.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 50 OF 2014

Praful Manohar Rele Vs Smt. Krishnabai Narayan Ghosalkar 

T.S. THAKUR, J.
Dated:January 3, 2014

1. Leave granted.
2. This appeal arises out of a judgment and order dated
16th October, 2009 passed by the High Court of Judicature at
Bombay whereby the High Court has allowed Civil Second
Appeal No.90 of 1992 set aside the judgment and decree
passed by the Additional District Judge in Civil Appeal No.33
of 1987 and restored that passed by the Trial Court
dismissing Regular Civil Suit No.87 of 1984. The factual

backdrop in which the dispute arose may be summarized as
under:
3. Manohar Narayan Rele owned a house bearing
Panchayat No.105 situate in village Ravdanda, Taluka Alibag,
District Raigad, in the State of Maharashtra. In RCS No.87 of
1984 filed by the said Shri Rele before the Civil Judge (Junior
Division), Alibag, the plaintiff prayed for a decree for
possession of the suit premises comprising a part of the
house mentioned above on the ground that the defendants
who happened to be the legal heirs of one Shri Narayan
Keshav Ghosalkar, a Goldsmith by profession, residing in
Bombay was allowed to occupy the suit premises as a
gratuitous licensee on humanitarian considerations without
any return, compensation, fee or charges for such
occupation. Upon the demise of Shri Narayan Keshav
Ghosalkar in February 1978, the defendants who stepped
into his shoes as legal heirs started abusing the confidence
reposed by the plaintiff in the said Ghosalkar and creating
nuisance and annoyance to the plaintiff with the result that
the plaintiff was forced to terminate the licence granted by

him in terms of a notice assuring for delivery of vacant
possession of the premises w.e.f. 1st February, 1984. Upon
receipt of the notice, the defendants instead of complying
with the same sent a reply refusing to vacate the premises
on the false plea that they were occupying the same as
tenants since the time of Shri Narayan Keshav Ghosalkar and
were paying rent although the plaintiff had never issued any
receipt acknowledging such payment. In a rejoinder sent to
the defendants, the plaintiff denied the allegations made by
the defendants and by way of abundant caution claimed
possession of the suit premises even on the grounds
permitted under the Rent Control Act of course without
prejudice to his contention that the defendants could not
seek protection under the Rent Act. Time for vacation of the
premises was also extended by the said rejoinder upto the
end of April, 1984.
4. The defendants did not vacate the premises thereby
forcing the plaintiff to file a suit for possession against them
on the ground that they were licensees occupying the
premises gratuitously and out of humanitarian

considerations. It was alternatively urged that the plaintiff
was entitled to vacation of the premises on the ground of
bona fide personal need, nuisance, annoyance and damage
allegedly caused to the premise and to the adjoining garden
land belonging to him.
5. In the written statement filed by the defendants they
stuck to their version that the suit property was occupied by
Shri Narayan Keshav Ghosalkar as a tenant and upon his
demise the defendants too were in occupation of the same as
tenants.
6. On the pleadings of the parties the Trial Court framed
as many as eight issues and eventually dismissed the suit
holding that the plaintiff had failed to prove that the
defendants were gratuitous licensees. The Trial Court also
held that the defendants had proved that they were
occupying the premises as tenants on a monthly rent of
Rs.13/- and that the plaintiff had failed to prove that he
required the premises for his bona fide personal use and
occupation. Issues regarding the defendants causing
nuisance and annoyance to the plaintiff and damage to the

property were also held against the plaintiff by the Trial
Court while declining relief to the plaintiff.
7. Aggrieved by the judgment and decree passed by the
Trial Court, the plaintiff preferred Civil Appeal No.33 of 1987
before the Additional District Judge, Alibag who formulated
six points for determination and while allowing the appeal
filed by the plaintiff decreed the suit in favour of his legal
representatives as the original plaintiff had passed away in
the meantime. The First Appellate Court held that the
plaintiff had successfully established that the suit premises
was occupied by Shri Narayan Keshav Ghosalkar on
gratuitous and humanitarian grounds. It also held that the
defendants-respondents had failed to prove the existence of
any tenancy in their favour and that since the license
granted to the defendants had been validly terminated, the
legal heirs substituted in place of the original plaintiff were
entitled to a decree.
8. Second appeal No.90 of 1992 was then filed by the
respondent against the judgment of the First Appellate Court
before the High Court of Judicature at Bombay which was

allowed by a Single Judge of that Court in terms of its
judgment impugned in the present appeal. Apart from three
substantial questions of law which the High Court had
formulated for consideration, it framed a fourth question for
consideration which was to the following effect:
“Whether the plaintiff could raise two contradictory
pleas in the plaint, namely, that (i) the defendants
were permitted to occupy the suit premises gratis;
and (ii) that the defendants should be evicted from
the suit premises under the provisions of the
Bombay Rent Act?”
9. Significantly, the decision rendered by the High Court
rests entirely on the fourth question extracted above. The
High Court has taken the view that while the plaintiff could
indeed seek relief in the alternative, the contentions raised
by him were not in the alternative but contradictory, hence,
could not be allowed to be urged. The High Court found that
the plaintiff’s case that the defendant was a gratuitous
licensee was incompatible with the plea that he was a tenant
and, therefore, could be evicted under the Rent Act. The
High Court observed:
“It is now well settled that a plaintiff may seek
reliefs in the alternative but in fact the pleadings are
mutually opposite, such pleas cannot be raised by

the plaintiff. There is an essential difference
between contradictory pleas and alternative pleas.
When the plaintiff claims relief in the alternative,
the cause of action for the reliefs claimed is the
same. However, when contradictory pleas are
raised, such as in the present case, the foundation
for these contradictory pleas is not the same. When
the plaintiff proceeds on the footing that the
defendant is a gratuitous licensee, he would have to
establish that no rent or consideration was paid for
the premises. Whereas, if he seeks to evict the
defendant under the Rent Act, the plaintiff accepts
that the defendant is in possession of the premises
as a tenant and liable to pay rent. Thus, the issue
whether rent is being paid becomes fundamental to
the decision. Therefore, in my opinion, the pleas
that the defendant is occupying the suit premises
gratuitously is not compatible with the plea that the
defendant is a tenant and therefore can be evicted
under the Rent Act.”
10. We have heard learned counsel for the parties at
length. The case of the plaintiff appellant herein primarily
was that the original defendant and even his legal
representatives were occupying the suit premises as
gratuitous licensees upon termination whereof the plaintiff
was entitled to a decree for possession. While the Trial Court
found that the defendants were tenants and not licensees as
alleged by the plaintiff the First Appellate Court had recorded
a clear finding to the contrary holding that the defendants
were indeed occupying the premises as licensees whose
license was validly terminated by the plaintiff. Whether or not

the defendants were licensees as alleged by the plaintiff was
essentially a question of fact and had to be answered on the
basis of the evidence on record which the First Appellate
Court had reappraised to hold that the defendants were let
into the suit property by the plaintiff on humanitarian
grounds and as gratuitous licensees. Absence of any rent
note evidencing payment of rent or any other material or
circumstance to suggest that the relationship between the
parties was that of landlord and tenant, abundantly
supported the conclusion of the First Appellate Court. That
finding also negatived the defence of the defendantsrespondents
that they were occupying the premises as
tenants which assertion of the defendant-respondent was
held not proved by the First Appellate Court. There is no
gainsaid that while considering the question whether the
relationship between the parties was that of licensor and
licensee as alleged by the plaintiff or landlord and tenant as
asserted by the defendants, the First Appellate Court took
into consideration the totality of the evidence on record with
a view to finding out as to which of the two versions was
factually correct. That doubtless was the correct approach to

adopt in a suit based on an alleged license where the
defendant’s logical defence was bound to be that he is in
occupation not as a licensee but as a tenant. There was, in
that view, nothing special or novel about the plea raised in
defence by the defendants-respondents. What is important is
that the First Appellate Court on facts found that the
defendants and even their predecessor were licensees in the
premises which stood validly terminated. The High Court
could not have interfered with that finding of fact leave alone
on the ground that since the alternative case set up by the
plaintiff in the plaint was contradictory to the primary case
pleaded by him, he was entitled to relief even on proof of the
primary case.
11. That apart the alternative plea of the plaintiff and the
defence set up by the defendants was no different from each
other. The only question that would fall for determination
based on such a plea was whether the plaintiff had
made out a case on the grounds permissible under the Rent
Control Act. An adjudication on that aspect would become
necessary only if the plaintiff did not succeed on the primary

case set up by him. The alternative plea would be redundant
if the plaintiff’s case of the defendants being gratuitous
licenses was accepted by the Court. That is precisely what
had happened in the instant case. The First Appellate Court
accepted the plaintiff’s case that defendants were in
occupation as licensees and not as tenants. The High Court
has not set aside that finding of fact on its merits. It may
have been a different matter if the High Court had done so
for valid reasons and then declined to entertain the
alternative case set up by the plaintiff based on tenancy. One
could in that case perhaps argue that the Court had declined
to go beyond the principal contention to examine the
alternative plea which was contradictory to the principal plea.
That, however, is not what the High Court has done. Without
finding fault with the findings recorded by the First Appellate
Court on the question of a license and its termination the
High Court has dismissed the suit simply because the plea of
tenancy was, in its opinion, contradictory to the plea of
license set up in the earlier part of the plaint. That was not,
in our opinion, a proper approach or course to follow.

12. The upshot of the above discussion is that the order
passed by the High Court cannot be sustained. Having said
that we may deal with the question whether the plea of
license and tenancy could be together urged by the plaintiff
for grant of relief in a suit for possession.
13. The general rule regarding inconsistent pleas raised in
the alternative is settled by a long line of decisions rendered
by this Court. One of the earliest decisions on the subject
was rendered by this Court in Srinivas Ram Kumar v.
Mahabir Prasad and Ors. AIR 1951 SC 177, where this
Court observed :
“It is true that it was no part of the plaintiff's case
as made in the plaint that the sum of Rs. 30,000
was advanced by way of loan to the defendant
second party. But it was certainly open to the
plaintiff to make an alternative case to that effect
and make a prayer in the alternative for a decree for
money even if the allegations of the money being
paid in pursuance of a contract of sale could not be
established by evidence. The fact that such a prayer
would have been inconsistent with the other prayer
is not really material…An Appellant 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.”
14. In Bhagwati Prasad v. Chandramaul AIR 1966 SC
735 the plea of licence was accepted against the plea of
tenancy although the plea of licence was not set up by the

appellant. The appellant in that case contended that the land
and the construction over the land belonged to him and that
he had let the constructed portion to the respondent on a
monthly rental basis. The respondent, however, alleged that
although the land belonged to the appellant the building
standing over the same was constructed by the respondent
out of his own money and, therefore, he was entitled to
occupy the same till his money was recovered from the
appellant. Since the plea of tenancy set up by the appellant
could not be proved, the Court held that the respondent was
staying in the house with the leave and licence of the
appellant. What is important is that the Court clearly
recognised the principle that if the plea raised by the tenant
in his written statement was clear and unambiguous in a suit
where one party alleged the relationship between the two to
be that of licensor and licensee, while the other alleged the
existence of a tenancy, only two issues arose for
determination, namely, whether the defendant is tenant of
the plaintiff or is holding the property as a licensee. If the
Court comes to the conclusion after the parties lead their
evidence that the tenancy had not been proved then the only

logical inference was that the defendant was in possession of
the property as a licensee. This Court said:
“In such a case the relationship between the parties
would be either that of a landlord and tenant, or that
of an owner of property and a person put into
possession if it by the owner's license. No other
alternative is logically or legitimately possible. When
parties led evidence in this case, clearly they were
conscious of this position, and so, when the High
Court came to the conclusion that the tenancy had
not been proved, but the defendant's argument also
had not been established, it clearly followed that the
defendant was in possession of the suit premises by
the leave and license of the
plaintiff…………………………………..
In our opinion, having regard to the pleas taken by
the defendant in his written statement in clear and
unambiguous language, only two issues could arise
between the parties: is the defendant the tenant of
the plaintiff, or is he holding the property as the
license ,subject to the terms specified by the written
statement?.... we are unable to see any error of law
in the approach by the High Court in dealing with it.”
(emphasis supplied)
15. In G. Nagamma and Anr. v. Siromenamma and
Anr. (1996) 2 SCC 25, this Court held that the plaintiff was
entitled to plead even inconsistent pleas especially when,
they are seeking alternative reliefs.
16. To the same effect is the decision of this Court in B.K.
Narayana Pillai v. Parameswaran Pillai 2000(1) SCC
712. In that case the appellant-defendant wanted to amend
the written statement by taking a plea that in case he is not
13
Page 14
held to be a lessee, he was entitled to the benefit of Section
60(b) of the Indian Easements Act, 1882. Allowing the
amendment this Court held that the plea sought to be raised
was neither inconsistent nor repugnant to the pleas raised in
defence. The Court further declared that there was no
absolute bar against taking of inconsistent pleas by a party.
What is impermissible is taking of an inconsistent plea by
way of an amendment thereby denying the other side the
benefit of an admission contained in the earlier pleadings. In
cases where there was no inconsistency in the facts alleged a
party is not prohibited from taking alternative pleas available
in law.
17. Reference may also be made to the decision of this
Court in J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and
Anr. (2002) 3 SCC 98 where this Court formulated the
following tests for determining whether the alternative plea
raised by the plaintiff was permissible:
“To sum up the gist of holding in Firm Sriniwas
Ram Kumar's case: If the facts stated and
pleading raised in the written statement, though by
way of defence to the case of the plaintiff, are
such which could have entitled the plaintiff to a
relief in the alternative, the plaintiff may rely on
such pleading of the defendant and claim an

alternate decree based thereon subject to four
conditions being satisfied, viz., (i) the statement of
case by defendant in his written statement amounts
to an express admission of the facts entitling the
plaintiff to an alternative relief, (ii) in granting such
relief the defendant is not taken by surprise, (iii) no
injustice can possibly result to the defendant, and
(iv) though the plaintiff would have been entitled to
the same relief in a separate suit the interest of
justice demand the plaintiff not being driven to the
need of filing another suit.”
18. The plaintiff-appellant in the case at hand had set up a
specific case that the defendant as also his legal
representative after his demise were occupying the suit
premises as licensees which licence had been validly
terminated. In the reply to the notice the case of the
defendants was that were in occupation of the suit premises
not as licensees but as tenants. The plaintiff was, therefore,
entitled on that basis alone to ask for an alternative relief of
a decree for eviction on the grounds permissible under the
Rent Control Act. Such an alternative plea did not fall foul if
any of the requirements/tests set out in the decision of this
Court in J.J. Lal’s case (supra). We say so because the
written statement filed by the defendant contained an
express admission of the fact that the property belonged to
the plaintiff and that the defendants were in occupation

thereof as tenants. At the trial Court also the question
whether the defendants were in occupation as licencee or as
tenants had been specifically put in issue thereby giving the
fullest opportunity to the parties to prove their respective
cases. There was no question of the defendants being taken
by surprise by the alternative case pleaded by the plaintiff
nor could any injustice result from the alternative plea being
allowed and tried by the Court. As a matter of fact the trial
Court had without any demurrer gone into the merits of the
alternative plea and dismissed the suit on the ground that
the plaintiff had not been able to prove a case for eviction of
the defendants. There was thus not only a proper trial on all
those grounds urged by the plaintiff but also a judgment in
favour of the defendant respondents. Last but not the least
even if the alternative plea had not been allowed to be raised
in the suit filed by the appellant he would have been certainly
entitled to raise that plea and seek eviction in a separate suit
filed on the very same grounds. The only difference may
have been that the suit may have then been filed before the
Court of Small Causes but no error of jurisdiction was
committed in the instant case as the finding recorded by the

Civil Court was that the defendants were licensees and not
tenants. Superadded to all these factors is the fact that the
appellate Court had granted relief to the appellant not in
relation to the alternative plea raised by him but on the
principal case set up by the plaintiff. If the plaintiff
succeeded on the principal case set up by him whether or not
the alternative plea was contradictory or inconsistent or even
destructive of the original plea paled into insignificance.
19. In the result, this appeal succeeds and is, hereby
allowed, the impugned judgment passed by the High Court is
set aside and that passed by the first appellate Court is
restored. The respondents are granted time till 30th April
2014 to vacate the premises subject to their filing
undertakings on usual terms before this Court within six
weeks from today. In case the undertakings are not filed, as
directed, the decree passed in favour of the appellant shall
become executable forthwith. No costs.
.……………….……….…..…J.
(T.S. THAKUR)

……..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
January 3, 2014

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