P L D 1953 Lahore 131 (PLP)

On appeal the learned District Judge found on the second issue that the plaintiff had not attained majority at the time of the alleged marriage. With regard to the retraining issues, the learned District Judge said they had not been seriously contested. This observation in so far its it concerns issue No. 1 can only mean that that issue would only have been contested if the find ing as to majority were in favour of the defendant‑appellant. The learned District Judge dismissed the appeal and the husband has come up in second appeal. Learned counsel for the appellant argues in the first instance that the pleas put forward by the plaintiff in her plaint being inconsistent and destructive of each other, the suit should have been dismissed on that ground alone, and, at any rate, 'could not have proceeded without an amendment. The plaintiff, he says, having alleged that there was no marriage at all, debarred herself from taking the plea that the marriage had been repudiated. The plea about non-existence of marriage had destroyed her plea of repudiation and the only question which could at all be gone into by the Court was whether the marriage had taken place or not, a matter on which the learned District Judge had given no finding. He relies in this connection on the well known Privy Council case Muhammad Bakhsh v. Hussaini Bibi (I L R 15 Cal. 684). That was a case where the plaintiff, a parda nashin lady, had alleged the hibanama executed by her was a forgery and in any case had been executed on account of undue influence. Learned counsel draws my attention to that part of the judgment where their Lordships, after quoting the self‑contradictory issue, criticised it. Here is the passage:‑ "Amongst the issues was this: "2nd, whether the hibanama on behalf of Shabzadi Bibi is genuine and valid and executed with her knowledge and consent, or whether it was manufactured without her knowledge and consent, or whether it was executed under undue influence?" In their Lordships' opinion the latter part of that issue ought not to have been admitted. It was absolutely inconsistent with the case made by the plaintiff. It only becomes possible on the assumption that the alleged cause of action is unfounded." Learned counsel also relies upon Narayanasami v. Ramasami arid others (I L R 14 Mad. 172), which judgment rather qualifies the principle laid down in the Privy Council case by saying that when a matter is within the personal knowledge of a person he cannot take up inconsistent positions with respect to it in his pleadings. Learned counsel might also have relied upon Iyyappa v. Ramalakshmamma (I L R 13 Mad. 549) and Bhimnath Misra and others v. Jagarnath Parasad and others (A I R 1925 Pat. 674) which do lay down the proposition that inconsistent pleas cannot be taken. On the other hand, there are more than a score of cases where it has been held that there is no bar to the taking of inconsistent pleas. Jino v. Menon (I L R 18 All. 125) is the first case which referred to another part of the Privy Council judgment Muhammad Bakhsh Khan v. Hussain! Bibi, from which it was inferred that their Lordships did not mean to lay down any rule for rejection of contradictory pleas. Since then in a large number of cases it has been accepted as a principle that inconsistent pleas are not barred. It will not serve any useful purpose to examine the cases in detail for the decision is based generally on the ground that the law of procedure provides no bar to the taking of such pleas. What is the nature of pleadings? The plaintiff in an action by his pleading alleges that certain facts exist on account of the existence of which he is according to the law of the land (substantive and procedural combined) entitled to certain relief or reliefs. The law of procedure might have confined him to only one set of facts by which I mean the minimum facts which will give rise to one or more reliefs. But the law of procedure not only allows the plaintiff, within certain bounds, to plead more than one set of facts but in some cases forces him to do so. Explanation I to section 11 of the Code of Civil Procedure enjoins the parties to take all proper grounds of attack or defence on pain of being debarred from relying upon them subsequently. If the party relies upon one set of facts only the question of inconsistent pleas will hardly arise. In such a case if two contradictory statements of facts are made, the pleading when read as a whole (and it has to be read as a whole) will contain no allegation with respect to that matter. If in one part of the pleading a plaintiff says "I am the son of B" and in another part "I am not the son of B", there is no statement on this point at all. When more than one set of facts are pleaded, there would not, in the absence of any pro vision in the procedural law, be any bar to a person relying upon a particular fact in one set, and upon a diametrically opposed fact in another set. However, our law of procedure does place limitations on the power of parties to state facts, the result of which is that though alternative pleas can be taken, such pleas cannot include allegations of facts which would destroy each other. I emphasize that I am referring now only to facts in the sense in which 'fact' is defined in the Evidence Act, that is "anything, state of things, relations of things capable of being perceived by the senses or any mental condition of which a person is conscious". Facts should not be confused with legal Inferences, for a great portion of what is stated in pleadings in our Courts consists of legal inferences. To illustrate the point, the proposition that a person has, by adverse possession, acquired title as an owner, is the statement not of a fact but a legal result. It is not something which can be perceived by the senses. It refers to a bundle of rights which the law attaches to a set or sets of facts. The Code of Civil Procedure does not allow a party to make contradictory allegations of fact. This is because a party cannot, in his pleading, make a statement which is not consistent with truth fulness. The Code of Civil Procedure provides that pleadings are to be verified as true. If a party has personal knowledge of facts it is obvious that he cannot make a contradictory state ment. Even if he has learnt of the facts from others, the law provides that he should verify the facts on 'information received and believed to be true.' A person cannot believe as true two, contradictory statements of facts. He cannot say 'I believe A is the son of B', and 'I also believe A is not the son of B'. Not only is there a direction that pleadings are to be verified but a person who makes a statement in a pleading, which is not correct, commits an offence under section 193 of the Pakistan Penal Code. If a person makes two contradictory statements he must be guilty of an offence under the above‑mentioned provision. It should be obvious, therefore, that a pleading cannot contain inconsistent allegations of fact. A criterion for finding whether allegations are in consistent or snot would be the answer to the question whether they can or cannot be verified at the same time. If two allegations be such that they cannot both be verified by one and the same person they cannot be allowed to stand and the B pleading will be defective. If, however, the allegations be such as can properly be verified at the same time, the pleading cannot be said to suffer from inconsistency. I may also refer in this connection to Order 6, rule 7 of the Code of Civil Procedure, which prevents a party from making an inconsistent allegation in a subsequent pleading. Had inconsistent allegations been permissible in the same pleading, there could be no objection on principle to their being introduced in a subsequent one. The law did not consider it necessary to say that in the same pleading inconsistent allega tions could not be made. There are as already stated a large number of cases laying down that alternative and inconsistent pleas are not barred. On a close examination of most of those cases it will be found that although the legal pleas were mutually exclusive, there were no contradictory allegations of fact. Take for instance a case where a party relies upon title by transfer from the owner and pleads in the alternative that even if the owner was minor at the time of transfer he has acquired a title by adverse possession. The allegations of fact are only the following:‑ 1. 'A' was the owner of the property in dispute. 2. 'A' executed a sale deed in my favour in 1930. 3. 'A' was a major in 1930.

4. I have been in possession of the property in dispute from 1930 to 1952.

5. Throughout the time I was in possession and considered myself the owner. These are all the allegations of fact which the plaintiff need make for pleading title and adverse possession. The rest of the statements which he will make in the plaint will only be legal effects of the facts alleged and according to the strict rules of pleading as provided in Order 6, rule 1, C. P. C. those legal effects should not be stated in the pleading. Party is to state only the facts and it is for the Court to apply the law and work out the results, though as a matter of convenience and on account of lack of regard for rules of pleading, such legal effects are generally made parts of pleadings. It will be observed that the facts detailed above which the plaintiff has to allege for a suit based on the alternative titles of transfer and adverse possession do not include any contradictory or mutually destructive allegations. Any body can verify these facts with the strictest regard for truth. Many other cases of apparently inconsistent pleas will when analysed yield similar results. The inconsistency is only in the legal conceptions, not in the facts stated. Now I come to cases where really the allegations are inconsistent. If the plaintiff says there is a sale deed purporting to be signed by him as executant but that it is a forgery and he never signed it and then adds an alternative plea "the defendant threatened me with death if I did not sign this sale deed and influenced by the threat I signed it", the allegations of fact are mutually destructive. The plaintiff is alleging at one place that he did sign the sale deed (though under threat) and at another that he never signed it. Such inconsistent allegations of fact cannot be allowed. Another example of truly inconsistent allegations c& fact is the case where plaintiff alleges he has acquired ownership of the property in dispute by adverse possession and pleads in the alternative that he has acquired a particular right of easement in the property by more than twenty years user. Such alternative claims would ordinarily not be objected to because the pleas in the plaint, which are mixed pleas of law and fact, will only be that plaintiff' has acquired a title by adverse possession or has acquired an easement. Analysing the two pleas it will be found that they contain inconsistent allegations. A person who claims title as owner by adverse possession must allege that during the time lie was in possession he regarded himself as the owner of the property. On the other hand. a person claiming easement by user as of right for the requisite period must allege that during the time he was exercising the right of user he regarded himself as not the owner of the property, otherwise the right cannot be said to have been exercised as an easement. Turning to the facts of the present case it will be seen that the plaint discloses no mutually destructive statements. The plaint says:‑

1. Defendant claims that he was married to me.

2. I have received information which I believe true that he was not married to me.

3. At the time when ha alleges I was married to him I had not attained puberty.

4. I have never lived with the defendant.

5. I made a declaration that whether he was married to me or not I repudiated it. The above are all the allegations (apart from the question of maintenance for two years which is irrelevant for the present purpose which the plaintiff has made and which she need make in such a case. This is not a case of inconsistent allegations of fact. None of the allegations destroys the other. To apply the criterion I have suggested all the allegations can be verified as true by the same person at one and the sane time. The objection of the learned counsel is realty to the form of the declaration contained in allegation No. 5, that the declaration cannot be made unless the existence of the marriage is accepted. I see no valid objection to its form. If a woman is not sure whether she was in fact married or not, there is no bar to her declaring that whether she was married or not she does not want the person concerned as a husband, In certain circumstances even mere denial of marriage may amount to its repudiation. The only question is whether she is prepared to accept him as a husband or not and if she unequivocally says she is not, the option of puberty is exercised. In cases where one is entitled to repudiate a particular transaction, it is not essential for him to accept the existence of the transaction before he exercises the right' of repudiation. Such an objection could not be justified on any principle. In the present case if the plaintiff were to sue at first only for a declaration that she was not married at all and the decision was against her she may lose her right of repudiation in the meantime. Learned counsel for appellant argues further that the learned District Judge should have given a finding on the question whether the marriage was in fact performed and that as he failed to do so, I should record my own finding. But the finding of the learned District Judge, that in April 1945, when the marriage is said to have taken place, the plaintiff had not attained the age of puberty makes a finding about the factum of marriage unnecessary. It is not the defendant's case that the marriage was performed through a guardian for marriage, his plea being that plaintiff was major in 1946, and, therefore, assuming anti marriage was performed it would be void for the minor's consent would be no consent at all. I would, therefore, confirm vie decree of the lower Courts that plaintiff is not the defendant's wife, but I would leave the parties to bear their own costs throughout. A. H. Appeal rejected.