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. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant, in his written statement, but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes, A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to file a separate suit.
Thus, where in a suit for specific performance of a contract, in part performance of which the plaintiff alleges to have paid the deft/ some money, the defendant denies the contract and pleads that the money was taken by him, as a loan, the Court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead, and claim relief on, this alternative case.
IN THE HIGH COURT OF BOMBAY
W.P. No. 1594 of 2006
Decided On: 29.03.2006
GTL Ltd. Vs. Maharashtra Rajya Rashtriya Kamgar Sangh and Ors.
Hon'ble Judges/Coram:
V.C. Daga, J.
Citation: MANU/MH/0254/2006,2006(3) MHLJ 646, 2006(4) ALLMR 690.
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