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Alternative pleas/contradictory pleas holds no significance when suit was decreed on main relief – suit filed for recovery of possession from the Licensees as they acted against the interest of owner after terminating the License – the defendants claimed as tenants – Suit filed with alternative relief under Bombay Rent Act as the defendants claimed as tenants – Lower court dismissed the suit as the defendants are tenants – Appeal allowed as the defendants are Licensees not tenant and High court set aside the Appeal decree and restored the dismissal order of Lower court on the ground that the plaintiff has taken alternative/ contradictory pleas – Apex court set aside the order of High court and held 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. = Praful Manohar Rele …Appellant Versus Smt. Krishnabai Narayan Ghosalkar & Ors. …Respondents = Published in judis.nic.in/supremecourt/filename=41124

Alternative pleas/contradictory pleas holds no significance when suit was decreed on main relief – suit filed for recovery of possession from the Licensees as they acted against the interest of owner after terminating the License – the defendants claimed as tenants – Suit filed with alternative relief under Bombay Rent Act as the defendants claimed as tenants – Lower court dismissed the suit as the defendants are tenants – Appeal allowed as the defendants are Licensees not tenant and High court set aside the Appeal decree and restored the dismissal order of Lower court on the ground that the plaintiff has taken alternative/ contradictory pleas –  Apex court set aside the order of High court and held 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. =

 

 “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?” 

 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. =

 

 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 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.

 

 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.

                                                

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 50 OF 2014
(Arising out of S.L.P. (C) No.4719 of 2010)
Praful Manohar Rele …Appellant

Versus

Smt. Krishnabai Narayan
Ghosalkar & Ors. …Respondents
J U D G M E N T

T.S. THAKUR, J.

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 defendants-respondents 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 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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