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.

Read full Judgment here: Click here

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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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Whether party can take inconsistent plea in addition written statement?

But this does not and cannot the mean that the Court should allow liberty to the defendant to deal with the matter in an arbitrary manner and ignore the stand he had disclosed to the Court on the earlier occasion and plead something contrary to what he had done before.

8. If any support for the view which I have mentioned above is needed, recourse can had to be the case of Dittu Ram v. Amar Chand MANU/HP/0018/1961. In this judgment it has been laid down in a clear and categorical manner by the judicial Commissioner that a party does not have a right to amend a previous pleading without the permission of the Court and it would be a violating of the principles of pleadings and in general of provision of O.6,R.7 of the Civil Procedure Code in particular if on the amendment of the plant a defendant is allowed to put forward pleas which are not in answer to the fresh matter introduction by the amendment of the plaint are inconsistent with the pleas previously put forward.

IN THE HIGH COURT OF GUJARAT

Second Appeal No. 465 of 1971

Decided On: 29.03.1976

Thakkar Babulal Dayashanker Vs. Mehta Natwarlal Kaluram and Anr.

Hon'ble Judges/Coram:

N.H. Bhatt, J.

Citation: AIR 1978 Gujarat 94

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Leading judgment on basic principles to be followed by court for striking off pleadings

Order VI Rule 16 CPC which empowers the Court to strike out the pleadings reads thus:

Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the court.

16. A reading of the plain language of the above reproduced provisions makes it clear that the court's power to strike out any pleading at any stage of the proceedings can be exercised in either of the three eventualities i.e., where the pleadings are considered by the court unnecessary, scandalous, frivolous or vexatious; or where the court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court.

17. Normally, a court cannot direct or dictate the parties as to what should be their pleading and how they should prepare their pleadings. If the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the court is satisfied that suit is an abuse of the process of the court. Since the striking off pleadings has serious adverse impact on the rights of the concerned party, the power to do so has to be exercised with great care and circumspection. In Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J. Observed:

It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 55 of 2010 (Arising out of SLP (C) No. 2991 of 2008)

Decided On: 07.01.2010

Abdul Razak (D) through L.Rs. and Ors. Vs Mangesh Rajaram Wagle and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and A.K. Ganguly, JJ.

Citation:  (2010) 2 SCC 432

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When court should not strike off additional written statement of defendant?

Therefore, when a defendant had raised a new plea, which is not covered in the original written statement or an inconsistent plea, against the original written statement, the same cannot be described or labeled as prejudicial defence or vexatious or scandalous, as understood under Order VI Rule 16 C.P.C. If the plaintiff/revision petitioner was aggrieved by the court's order, in granting permission to file the additional written statement, the remedy would have been to challenge the same and not to file a petition under Order VI Rule 16 C.P.C., to strike out the entire defence.

Order 6 Rule 16 C.P.C. reads:

"The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit. Or

(c) which is otherwise an abuse of the process of the Court."

Therefore, considering the inconsistent stand taken by the defendant alone, the additional written statement cannot be described as unnecessary, scandalous, frivolous or vexatious. Even if a case is decided previously against the first defendant or her husband, whether that would operate as res judicata or something like, has to be decided, if raised and on the basis of the previous decision, summarily a defendant cannot be prevented from raising the said plea. If there is any allegation, deviating from the subject matter of the suit, extraneously aiming against the individual, not connected with the subject matter for decision, in my opinion, then only it could be said, the pleadings are unnecessary or scandalous , frivolous vexatious, attracting Rule 16(a). In this case, as seen from the additional written statement, the respondent herein had questioned the status of the plaintiff, locus standi to maintain the suit for eviction, etc. and these matters have to be decided only at the time of the trial and the same cannot be struck out.

IN THE HIGH COURT OF MADRAS

C.R.P. No. 2318 of 2003

Decided On: 25.06.2004

Sri Srinivasmurthy Mandiram Vs. Mrs. Gnanasoundari

Hon'ble Judges/Coram:

M. Thanikachalam, J.

Citation: AIR 2004 Mad 518

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Whether it is permissible for plaintiff to file replication?

 Pleadings generally refer to a statement of the case/claim which is a plaint and the statement of defence of the other side which is called written statement. However, the Court at times may require the parties to file further statements to supplement their plaint case or written statement. Such subsequent statements are normally referable to replication/rejoinder, in case of the plaintiff and additional written statement in case of the defendant.

Sometimes, additional written statement is necessary on the amendment of the plaint. Similarly, on the amendment of the written statement, the plaintiff may file additional statement which is again called replication. A replication by the plaintiff is also necessary when new facts are stated in the written statement which require to be replied by the plaintiff.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 3436 of 2013

Decided On: 23.01.2013

 Smt. Kiran Chaudhary and Another Vs. Jay Prakash Chaudhary

Hon'ble Judges/Coram:

Pankaj Mithal, J.

Citation: 2013 (4) ADJ 199:2013(3) AWC 3121

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