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

Print Page

Whether prayer for divorce can be made alternatively in the petition for nullity if filed within one year?

 A petition was not filed for divorce under Section 13(1)
(ia) of the Hindu Marriage Act on the ground of cruelty.  Section 14
is applicable to a petition for divorce which is filed under Section 13
of the   Hindu  Marriage  Act and not  a petition  for  nullity under
Section 11 or 12.  Nullity of marriage is altogether of different status
than divorce.  Therefore, if there is a prayer for nullity of marriage,
the petition is to be presented within one year as sub­Section 2 of
Section 12 lays down that no petition for annuling a marriage on
the   ground   specified   in   Clause   (c)   of   Sub­Section   1   shall   be
entertained if (i) petition is presented more than one year after the
force has ceased to operate or as the case may be, the fraud has
been discovered.  Thus, the petition was filed not under Section 13

for divorce but, for nullity under Section 12.  Filing of the petition
within one year from the discovery of the fraud or after the force
has been ceased to operate is mandatory and, therefore, the petition
was rightly filed within time under Section 12.  However, in the said
petition, there is an alternative prayer for divorce on the ground of
cruelty.     In   the   petition,   there   are   averments   in   respect   of   the
instances of cruelty and, therefore, alternative relief of divorce is
prayed   as   the   marriage   was   consummated   between   the   parties.
Alternative prayer of divorce in the petition for nullity is neither
contrary nor inconsistent and can be entertained by the Court.  The
Judge, Family Court is not found at fault taking view that the Court
when heard the matter and the evidence of the parties was recorded
found that the parties were residing separately since March­2007,
i.e. for more four years so bar under Section 14 will not come in the
way.   We are in agreement with the pragmatic approach taken by
the   learned   Judge,   Family   Court   while   entertaining   the   petition
under Section 13(1)(ia) though it was presented within one year
from the date of the marriage.  One important point is also to be
noted that if a party wants to seek an alternative relief for grant of
decree of divorce in a petition for nullity of marriage filed within

one year, then it will be cumborsome for the party to file anotheral
petition for divorce after one year.  This leads to multiplicity of the
proceedings.     Hence,   the   prayer   for   divorce   can   be   made
alternatively in the petition for nullity if filed within one year.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No.  166/2014
WITH
CROSS OBJECTION ST. No. 5743/2014
Dr. Rajasi @ Swapna w/o Shashank Dandge,

.....VERSUS.....
Dr. Shashank s/o Vitthalrao Dandge,

CORAM: B.R. GAVAI AND                        
MRS.MRIDULA BHATKAR, JJ. 
    DATE    :       6TH
            JANUAR  Y ,               2015.
Citation; 2015 (6) MHLJ872

Print Page

Whether petition for nullity of marriage along with alternative prayer for divorce is maintainable?

Filing of the petition 
within one year from the discovery of the fraud or after the force 
has been ceased to operate is mandatory and, therefore, the petition 
was rightly filed within time under Section 12.   can be entertained 
for   nullity   under   Section   12(1)(c).     There   should   not   be   routine 
practice to file a petition for nullity and However, in the said 
petition, there is an alternative prayer for divorce on the ground of 
cruelty.     In   the   petition,   there   are   averments   in   respect   of   the 
instances  of  cruelty  and, therefore, alternative   relief  of  divorce  is 
prayed   as   the   marriage   was   consummated   between   the   parties. 
Alternative   prayer   of   divorce   in   the   petition   for   nullity   is   neither 
contrary nor inconsistent and can be entertained by the Court.  The 
Judge, Family Court is not found at fault taking view that the Court 
when heard the matter and the evidence of the parties was recorded 
found that the parties were residing separately since March­2007, 
i.e. for more four years so bar under Section 14 will not come in the 
way.   We are in agreement with the pragmatic approach taken by 
the   learned   Judge,   Family   Court   while   entertaining   the   petition 
under Section 13(1)(ia) though it was presented within one year 
from the date of the marriage.   One important point is also to be 
noted that if a party wants to seek an alternative relief for grant of 
decree of divorce in a petition for nullity of marriage filed within 

one year, then it will be cumborsome for the party to file another 
petition for divorce after one year.  This leads to multiplicity of the 
proceedings.     Hence,   the   prayer   for   divorce   can   be   made 
alternatively in the petition for nullity if filed within one year.   If 
nullity prayed, itself makes an exceptional hardship.  In the case of 
Mr.X  (Supra), the petition was filed before the expiry of one year 
from the date of the marriage on the ground of cruelty.  Leave was 
granted by the trial Court.  In paragraph 7, the Division Bench held 
that “the trial Court has rightly granted the leave and it was held 
that   the   appellate   Court   will   not   interfere   with   the   trial   Judge's 
discretion unless he has proceeded on a wrong principle of law, or 
failed to have regard to some material consideration or some gross 
injustice has occurred”.  Needless to mention that after all it is left to 
the   Judge,  Family  Court  to consider   whether  the   parties  have  an 
exceptional hardship and prima­facie the petition put an alternative prayer for 
divorce under Section 13 giving a go­bye to the statutory provision 
under Section 14 of the Hindu Marriage Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FCA 166/14
FAMILY COURT APPEAL No.  166/2014
WITH
CROSS OBJECTION ST. No. 5743/2014

Dr. Rajasi @ Swapna w/o Shashank Dandge V Dr. Shashank s/o Vitthalrao Dandge,

CORAM : B.R. GAVAI AND                        
MRS.MRIDULA BHATKAR, JJ. 

DATE    :       6TH       JANUARY,         2015.

Citation;2015(3) ALLMR316

Print Page