Whether the plaintiff can make two or more inconsistent sets of allegations and claim relief thereunder in the alternative?

 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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Under which circumstances the court can permit defendant to file additional written statement taking contrary stand to original written statement?

The aforesaid two judgments would clearly establish that it is permissible for parties to take inconsistent and contrary stands contrary to what was stated in their original written statement. If this is permitted, then one fails to understand why additional written statement taking contrary and inconsistent stand to the original one cannot be allowed. As already observed hereinabove, amendment by way of substitution results in substitution or deletion of the original admission or pleadings from the record. By allowing defendant or opponent to file additional written statement retaining original one on record goes to the benefit of the plaintiff. If the additional written statement is allowed to be filed retaining original pleadings on record then it would not cause any prejudice to either of the parties because when case will come up for trial the parties will have to take a particular stand. They will have to opt for particular defence. Mere fact that additional written statement has been allowed will not give a right to the defendant to prove inconsistent pleas. {Para 30}

31. Turning to the facts of the case at hand, the controversy will have to be first determined before going to the trial; whether or not the first written statement was under duress or coercion. If party filing first written statement can successfully establish that the first written statement was filed under duress or coercion and/or pressure and/or misrepresentation of facts; then the first written statement and pleadings contained therein will have to be thrown out and defence based on additional written statement will have to be considered and issues based thereon will have to be adjudicated upon. The party filing additional written statement was only permitted to raise inconsistent and contrary pleas with a right to choose or opt for a particular stand before the commencement of trial or at the time of determination of issues.

 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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What are basic principles the court should follow while deciding an application seeking permission to file replication or rejoinder?

The principles deducible from the above discussions may be summarised thus -

a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint.

b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.

c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.

d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.

e) Application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different. {Para 9}

 IN THE HIGH COURT OF RAJASTHAN

Civil Revn. No. 1151 of 1997

Decided On: 04.03.1998

State of Rajasthan and Ors.  Vs. Mohammed Ikbal and Ors.

Hon'ble Judges/Coram:

Shiv Kumar Sharma, J.

Citation: MANU/RH/0223/1999

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Under which circumstances the court can permit plaintiff to file a Replication?

 As stated supra, the petitioner has not raised any new plea and on the other hand, in order to controvert by giving proper reply qua the new facts stated in some of the paragraphs in the written statement by the first respondent, the petitioner sought leave to file replication. When the first respondent attempted to introduce new facts in the written statement, the petitioner must be afforded an opportunity to controvert the said averments incorporated in the writ statement. Therefore, in the facts and circumstances of the case, the decision in the case of Dhartipakar Madan Lal Agarwal relied upon by the first respondent is not helpful to the case of the first respondent.

{Para 30}

31. Admittedly, the practice of filing replication/subsequent pleading is meant only for denying and/or clarifying the facts stated in the written statement. Fresh cause of action or fresh case is not brought up by filing replication. On a perusal of the replication filed by the petitioner, this Court finds that the averments set out in the replication are not contrary to the averments set out in the election petition and these are only explanatory to the plea advanced by the first respondent in the written statement. Therefore, in order to explain/clarify the plea of the first respondent and for fair trial of the election petition and also in the interest of justice, this Court is inclined to grant leave to the petitioner to file replication.

 IN THE HIGH COURT OF MANIPUR AT IMPHAL

MC (El. Pet.) No. 119 of 2022 and El. Pet. No. 6 of 2022

Decided On: 14.03.2023

Nahakpam Indrajit Singh Vs. Sheikh Noorul Hassan and Ors.

Hon'ble Judges/Coram:

M.V. Muralidaran, Actg. C.J.

Citation: MANU/MN/0055/2023.

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