What do you mean by alternative, inconsistent and mutually destructive inconsistent alternative pleas? What is the effect of inconsistent pleadings? Can a party resort to inconsistent and alternative pleadings?

Question: What do you mean by alternative, inconsistent and mutually destructive inconsistent alternative pleas? What is the effect of inconsistent pleadings? Can a party resort to inconsistent and alternative pleadings?

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Answer

The expression ‘alternative’ means one or the other of two things. A party to litigation may include in his pleadings two or more sets of facts and claim relief in the alternative. Inconsistent, on the other hand, means mutually repugnant, contradictory or irreconcilable. Acceptance or establishment of one necessarily implies abrogation or abandonment of the other.

In Re Morgan, (1887) LR 35 Ch D 492 (CA), the court observed that the plaintiffs may rely upon several different reliefs in the alternative. Similarly, the defendants can also raise several defences in the alternative. For instance, a suit for possession is maintainable on the basis of title or in the alternative, on the basis of lease. In Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177, the Supreme Court held that the object of allowing alternative pleadings is to obviate the necessity of another set of litigations and to decide all the controversy in one litigation.

As regards inconsistent pleadings, the Code does not prohibit a party from making two or more inconsistent sets of allegations. A plaintiff may rely on several different rights alternatively, although they may be inconsistent. Defendants may also raise by their statement of defence, without the leave of court, as many distinct and separate inconsistent defences as they may think proper. Inconsistent pleas are permissible but they are seen with suspicion by the court. A party who tries to establish both inconsistent pleas places himself in peril of adducing mutually contradictory and destructive evidence. It must be remembered that the party cannot be allowed to approbate and reprobate at the same time.

A Party can resort to inconsistent and alternative pleadings. However, the Court may not allow such pleadings in the following cases:

(i) where such pleading delay or embarrass fair trial [Rule 16]

(ii) such a plea is not maintainable by law.

(iii) where a party has taken up a definite stand once and the court has given a decision on that footing.

As noted by the Hon’ble Supreme Court of India in the case of Shiromani Gurdwara Prabhandak v. Jaswant Singh, (1996) 11 SCC 690

“It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement but it is for the Court to consider whether the case can be properly considered in deciding the issue.”

The Apex Court in M/s. Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co, 1977 AIR 680 held that inconsistent pleadings also can be permitted to be raised and that while allowing such amendments, a party shall not be allowed to displace the pleadings constituting admissions made by the defendants in the written statement. The court further noted in this case that:

“It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.”

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