Evidence Act sec.112 and sec. 45 - conflict between sec.112 and DNA TEST - DNA TEST PREVAILS OVER THE PRESUMPTION - Presumption of paternity when the husband and wife have access - husband pleaded non accesses - wife pleaded that there was restoration of relationship - No finding from the lower courts - DNA test shows that husband is not the father of daughter of wife - Apex court held that In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. = NANDLAL WASUDEO BADWAIK ..... APPELLANT VERSUS LATA NANDLAL BADWAIK & ANR. ..... RESPONDENTS = Published in judis.nic.in/supremecourt/filename=41129

2014 judis.nic.in/s.c./filename=41129
Evidence Act sec.112 and sec. 45 - conflict between sec.112 and DNA TEST - DNA TEST PREVAILS OVER THE PRESUMPTION - Presumption of paternity when the husband and wife have access - husband pleaded non accesses - wife pleaded that there was restoration of relationship - No finding from the lower courts - DNA test shows that husband is not the father of daughter of wife - Apex court held that In our opinion, when there  is  a  conflict  between  a conclusive proof envisaged under  law  and  a  proof  based  on  scientific advancement accepted by the world community to be correct, the latter  must prevail over the former. =
whether the DNA test would be  sufficient
to hold that the appellant is not the biological father of  respondent  no.
2, in the face of what has been provided under Section 112 of the  Evidence
Act, which reads as follows:


             “112. Birth during marriage, conclusive proof of  legitimacy.-
             The fact that any person was born during the continuance of  a
             valid marriage between his mother and any man, or  within  two
             hundred and eighty days  after  its  dissolution,  the  mother
             remaining unmarried, shall be conclusive proof that he is  the
             legitimate son of that man, unless it can be  shown  that  the
             parties to the marriage had no access to  each  other  at  any
             time when he could have been begotten.”




     From a plain reading of the aforesaid, it is evident that a child  born
during the continuance of a valid marriage shall be a conclusive proof that
the child is a legitimate child of the man to whom the lady giving birth is
married. The provision makes the legitimacy of the child to be a conclusive
proof, if the conditions aforesaid are satisfied.  It can be denied only if
it is shown that the parties to the marriage have no access to  each  other
at any time when the child could have been begotten.  Here, in the  present
case, the wife had pleaded that the husband had access to her and, in fact,
the child was born in the said wedlock, but the  husband  had  specifically
pleaded that after his wife left the matrimonial home, she did  not  return
and thereafter, he had no access to her.  The wife has  admitted  that  she
had left the matrimonial home but again joined her husband.  Unfortunately,
none of the courts below have given any finding with regard to this plea of
the husband that he had or had not any access to his wife at the time  when
the child could have         been begotten.


     As stated earlier, the DNA test is an accurate test and on  that  basis
it is clear that the appellant is not the biological father  of  the  girl-
child.  
However, at the same time, the condition precedent  for  invocation
of Section 112 of the Evidence Act has been established and no finding with
regard to the plea of the husband that he had no access to his wife at  the
time  when  the  child  could  have  been  begotten  has   been   recorded.
Admittedly, the child has been born  during  the  continuance  of  a  valid
marriage.  
Therefore, the provisions of Section 112  of  the  Evidence  Act
conclusively prove that respondent No. 2 is the daughter of the  appellant.
At the same time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is not  the  biological  father.
In such circumstance, which would give  way  to  the  other  is  a  complex
question posed before us.


     We may remember that Section 112 of the Evidence Act was enacted  at  a
time when the modern scientific advancement and DNA test were not  even  in
contemplation of the Legislature.  
The result of DNA test  is  said  to  be
scientifically accurate.  
Although Section  112  raises  a  presumption  of
conclusive proof on satisfaction of the conditions enumerated  therein  but
the same is rebuttable. 
The presumption  may  afford  legitimate  means  of
arriving at an affirmative legal conclusion.  
While the truth  or  fact  is
known, in our opinion, there is no need or room for any presumption.  
Where
there is evidence to the contrary, the presumption is rebuttable  and  must
yield to proof.  
Interest of justice is best  served  by  ascertaining  the
truth and the court should be furnished with the best available science and
may not be left to bank upon presumptions, unless science has no answer  to
the facts in issue. 
In our opinion, when there  is  a  conflict  between  a
conclusive proof envisaged under  law  and  a  proof  based  on  scientific
advancement accepted by the world community to be correct, the latter  must
prevail over the former.


     We must understand the distinction between  a  legal  fiction  and  the
presumption of a fact.    Legal fiction assumes existence of a  fact  which
may  not  really  exist.   However  presumption  of  a  fact   depends   on
satisfaction of certain circumstances. Those circumstances logically  would
lead to the fact sought to be presumed.  Section 112 of  the  Evidence  Act
does not create a legal fiction but provides for presumption.
     The husband’s plea that he had no access to the wife when the child was
begotten stands proved by the DNA test report and in the  face  of  it,  we
cannot compel the appellant to bear the fatherhood of  a  child,  when  the
scientific reports prove to the contrary. We are conscious that an innocent
child may not be bastardized as the marriage between her mother and  father
was subsisting at the time of her birth,  but  in  view  of  the  DNA  test
reports  and  what  we  have  observed  above,  we  cannot  forestall   the
consequence.  It is  denying  the  truth.   “Truth  must  triumph”  is  the
hallmark of justice.


     As regards the authority of this  Court  in  the  case  of  Kamti  Devi
(Supra), this Court on appreciation of evidence came to the conclusion that
the husband had no opportunity whatsoever to have liaison  with  the  wife.
There was no DNA test held in the case.  In the said background  i.e.  non-
access of the husband with the wife, this Court held that the result of DNA
test “is not enough to escape from the conclusiveness of Section 112 of the
Act”.  The judgment has to be understood in the  factual  scenario  of  the
said case.  The said judgment has not held that DNA test is to be  ignored.
In fact,  this  Court  has  taken  note  of  the  fact  that  DNA  test  is
scientifically accurate.  We hasten to  add  that  in  none  of  the  cases
referred to above, this Court was confronted with a situation in which  DNA
test  report,  in  fact,  was  available  and  was  in  conflict  with  the
presumption of conclusive proof of legitimacy of the  child  under  Section
112 of the Evidence Act. In view of what  we  have  observed  above,  these
judgments in no way advance the case of the respondents.


     In the result, we allow this appeal, set aside the impugned judgment so
far as it directs payment of maintenance to respondent no. 2.  However,  we
direct that the payments already made  shall  not  be  recovered  from  the
respondents.
                                                           
     REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                         CRIMINAL APPEAL NO.24 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.8852 of 2008)


NANDLAL WASUDEO BADWAIK             ..... APPELLANT


                                   VERSUS


LATA NANDLAL BADWAIK & ANR.     ..... RESPONDENTS



                               J U D G M E N T



CHANDRAMAULI KR. PRASAD, J.

      Petitioner happens to  be  the  husband  of  respondent  no.  1,  Lata
Nandlal Badwaik and alleged to be the father of girl child Netra alias  Neha
Nandlal Badwaik, respondent no. 2, herein.
The marriage  between  them  was
solemnized on 30th of June, 1990 at Chandrapur.
Wife filed  an  application
for maintenance under Section 125 of the Code  of  Criminal  Procedure,  but
the same was dismissed  by  the  learned  Magistrate  by  order  dated  10th
December, 1993.  
Thereafter, the wife resorted to a fresh  proceeding  under
Section 125 of the Code of Criminal Procedure (hereinafter  referred  to  as
the ‘Code’) claiming maintenance for herself and her daughter,  inter  alia,
alleging that she started living with her husband from 20th  of  June,  1996
and stayed with  him  for  about  two  years  and  during  that  period  got
pregnant.  She was sent for delivery at her parents’ place  where  she  gave
birth to a girl child,  the  respondent  no.  2  herein.
 Petitioner-husband
resisted the claim and alleged that the  assertion  of  the  wife  that  she
stayed with him  since  20th  of  June,  1996  is  false.
He  denied  that
respondent no. 2 is his daughter.  After 1991, according to the husband,  he
had  no  physical  relationship  with  his  wife.
The  learned  Magistrate
accepted the plea of the  wife  and  granted  maintenance  at  the  rate  of
Rs.900/- per month to the wife and at the rate of Rs.500/- per month to  the
daughter.
The challenge to the said order in revision has failed so also  a
petition under Section 482 of the Code, challenging those orders.

      It is against these orders, the petitioner has preferred this  special
leave petition.

      Leave granted.

      Taking note of the challenge to  the  paternity  of  the  child,  this
Court by order dated 10th of January, 2011 passed the following order:

            “…………However,  the  petitioner-husband   had   challenged   the
            paternity of the child and  had  claimed  that  no  maintenance
            ought to have been awarded to the child.   The  petitioner  had
            also applied for referring the child for DNA  test,  which  was
            refused.  It is against the said  order  of  refusal  that  the
            present Special  Leave  was  filed  and  the  same  prayer  for
            conducting the DNA test was made before us.  On  8th  November,
            2010 we had accordingly,  directed  the  petitioner-husband  to
            deposit all dues, both arrear and current, in  respect  of  the
            maintenance awarded to the wife  and  child  to  enable  us  to
            consider the prayer for holding of such DNA test.  Such deposit
            having been made on 3rd January, 2011, we had agreed  to  allow
            the  petitioner’s  prayer   for   conducting   DNA   test   for
            ascertaining the paternity of the child.


                 We have since been informed by counsel for the parties that
            a Forensic Science Laboratory in Nagpur conducts the very  same
            test, as has been asked for, by the  Petitioner.   
Accordingly,
            we  direct  the  petitioner-Nandlal  Wasudeo  Badwaik  and  the
            respondent No. 1-Ms. Lata  Nandlal  Badwaik  to  make  a  joint
            application  to  the  Forensic  Science   Laboratory,   Nagpur,
            situated at Jail Road, Dhantoli, for conducting such test.  
The
            petitioner, as well as the  respondent  No.  1,  shall  present
            themselves at the Laboratory with respondent No. 2 for the said
            purpose on the  date  to  be  fixed  by  the  laboratory,  and,
            thereafter, the laboratory is directed to send  the  result  of
            such test to this Court  within  four  weeks  thereafter.   The
            expenses for the test to be conducted shall  be  borne  by  the
               petitioner-husband.”




     In the light of the aforesaid  order,  the  Regional  Forensic  Science
Laboratory, Nagpur has submitted the result of DNA testing and opined  that
appellant “Nandlal Vasudev Badwaik is excluded to be the biological  father
of Netra alias Neha Nandlal Badwaik”, respondent no. 2 herein.


     Respondents, not being satisfied with  the  aforesaid  report,  made  a
request for re-test.  The said prayer of the respondents was  accepted  and
this Court by order dated 22nd of July, 2011 gave the following direction:


            “Despite the fact that the report of the DNA Test conducted  at
            the Regional Forensic Science Laboratory, State of Maharashtra,
            Nagpur-12, indicates that the petitioner is not the  biological
            father of the respondent No. 2, on the prayer made on behalf of
            the respondents for a re-test, we are of the view that  such  a
            prayer may be allowed having regard to the serious consequences
            of the Report which has been filed.


            Accordingly, we direct that a further DNA Test be conducted  at
            the Central Forensic  Laboratory,  Ministry  of  Home  Affairs,
            Government of India at Hyderabad and for the said  purpose  the
            parties are directed to appear before the  Laboratory  on  24th
            August, 2011 at 11.00 a.m.”




     As  directed,  the  Central  Forensic  Science  Laboratory,   Hyderabad
submitted its report and on that basis opined that the appellant,  “Nandlal
Wasudeo Badwaik can be excluded from being the biological  father  of  Miss
Neha Nandlal Badwaik”, respondent no. 2 herein.


      At the  outset,  Mr.  Manish  Pitale  appearing  for  the  respondents
submits that the appellant having failed to establish that he had no  access
to his wife at any time when she could have begotten respondent no.  2,  the
direction for DNA test ought not  to  have  been  given.
 In  view  of  the
aforesaid he submits that the result of such a test is fit  to  be  ignored.
In support of the submission he has placed reliance on a  judgment  of  this
Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, relevant  portions
whereof read as under:

             “24. This section requires the party disputing  the  paternity
             to prove  non-access  in  order  to  dispel  the  presumption.
             “Access” and “non-access” mean the existence or  non-existence
             of opportunities for sexual  intercourse;  it  does  not  mean
             actual “cohabitation”.


             26. From the above discussion it emerges—


             (1) That courts in India cannot order blood test as  a  matter
             of course;


             (2) wherever applications are made for such prayers  in  order
             to have roving inquiry, the prayer for blood  test  cannot  be
             entertained.


             (3) there must be a  strong  prima  facie  case  in  that  the
             husband must establish  non-access  in  order  to  dispel  the
             presumption arising under Section 112 of the Evidence Act.


             (4) the court must carefully examine as to what would  be  the
             consequence of ordering the blood test; whether it  will  have
             the effect of branding a child as a bastard and the mother  as
             an unchaste woman.


             (5) no one can be  compelled  to  give  sample  of  blood  for
             analysis.


             27. Examined in the light of the above, we find no  difficulty
             in upholding the impugned order of the High Court,  confirming
             the order of the Additional Chief Judicial Magistrate, Alipore
             in rejecting the application for blood test…………….”

     Yet another decision on which reliance has been placed is the  decision
of this Court in the case of Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449,
paragraph 13, which is relevant for the purpose is quoted below:


             “13. We may remember that Section 112 of the Evidence Act  was
             enacted at a time when the modern scientific advancements with
             deoxyribonucleic acid (DNA) as well as ribonucleic acid  (RNA)
             tests were not even in contemplation of the  legislature.  The
             result of a genuine DNA test  is  said  to  be  scientifically
             accurate. But even that is  not  enough  to  escape  from  the
             conclusiveness of Section 112 of the Evidence Act  e.g.  if  a
             husband and wife were  living  together  during  the  time  of
             conception but the DNA test revealed that the  child  was  not
             born to the husband, the conclusiveness in  law  would  remain
             irrebuttable. This may look hard from the point of view of the
             husband who would be compelled to bear  the  fatherhood  of  a
             child of which he may be innocent. But even in such a case the
             law  leans  in  favour  of  the  innocent  child  from   being
             bastardised if his mother and her spouse were living  together
             during the time of conception. Hence  the  question  regarding
             the  degree  of  proof  of  non-access   for   rebutting   the
             conclusiveness must be answered in the light of what is  meant
             by access or non-access as delineated above. (See  Kamti  Devi
             v. Poshi Ram, 2001 (5) SCC 311.)”




     Reliance has also been placed on a decision of this Court in  the  case
of Bhabani Prasad Jena v. Orissa State Commission for Women, (2010)  8  SCC
633, in which it has been held as follows:


             “22. In our view, when there is apparent conflict between  the
             right to privacy of a person not to submit himself forcibly to
             medical examination and duty of the court to reach the  truth,
             the court must exercise its discretion  only  after  balancing
             the interests of the parties and on due consideration  whether
             for a just decision in  the  matter,  DNA  test  is  eminently
             needed. DNA test in a matter relating to paternity of a  child
             should not be directed by the court as a matter of  course  or
             in a routine manner, whenever such  a  request  is  made.  The
             court has to consider diverse  aspects  including  presumption
             under Section 112 of the Evidence Act; pros and cons  of  such
             order and the  test  of  “eminent  need”  whether  it  is  not
             possible for the court to reach the truth without use of  such
             test.”


      Miss Anagha S. Desai appearing on behalf of the appellant submits that
this Court twice ordered for  DNA  test  and,  hence,  the  question  as  to
whether this was a fit case in which DNA  profiling  should  or  should  not
have been ordered is academic.  We find substance in the submission  of  Ms.
Desai.
Fact of the matter is that this Court not only once, but twice  gave
directions for DNA test.  The respondents, in  fact,  had  not  opposed  the
prayer of DNA test when such a prayer was  being  considered.   It  is  only
after the reports of the DNA test had been received, which  was  adverse  to
the respondents, that they are challenging it on  the  ground  that  such  a
test ought not to have been directed.  We cannot go  into  the  validity  of
the orders passed by a coordinate Bench of this Court  at  this  stage.   It
has attained finality.  Hence, we do not find any merit  in  the  submission
of the learned counsel for the respondents.
 As  regards  the  decision  of
this Court in the cases of Goutam Kundu (supra), Banarsi  Dass  (supra)  and
Bhabani Prasad Jena (supra), the same have  no  bearing  in  the  facts  and
circumstances of the case.  In all these cases, the  court  was  considering
as to whether facts of those cases justify  passing  of  an  order  for  DNA
test.  When the order for DNA test has already been passed, at  this  stage,
we are not  concerned  with  this  issue  and  we  have  to  proceed  on  an
assumption that a valid direction for DNA test was given.


      Ms. Desai submits that in view of the opinions, based on DNA profiling
that appellant is not the biological father, he cannot be fastened with  the
liability to pay maintenance to  the  girl-child  born  to  the  wife.   Mr.
Pitale,  however, submits that the marriage  between  the  parties  has  not
been dissolved, and the birth of the child having  taken  place  during  the
subsistence of a valid marriage and the husband having access to  the  wife,
conclusively prove that the girl-child is the  legitimate  daughter  of  the
appellant.
According to him, the  DNA  test  cannot  rebut  the  conclusive
presumption envisaged under Section 112 of the Evidence Act.   
According  to
him, respondent no. 2, therefore, has to  be  held  to  be  the  appellant’s
legitimate daughter.  In  support  of  the  submission,  reliance  has  been
placed on a decision of this Court in the case of
Kamti Devi v.  Poshi  Ram,
(2001) 5 SCC 311, and reference  has  been  made  to  paragraph  10  of  the
judgment, which reads as follows:


             “10. ………The result of  a  genuine  DNA  test  is  said  to  be
             scientifically accurate. But even that is not enough to escape
             from the conclusiveness of Section 112 of the Act  e.g.  if  a
             husband and wife were  living  together  during  the  time  of
             conception but the DNA test revealed that the  child  was  not
             born to the husband, the conclusiveness in  law  would  remain
             irrebuttable. This may look hard from the point of view of the
             husband who would be compelled to bear  the  fatherhood  of  a
             child of which he may be innocent. But even in such a case the
             law  leans  in  favour  of  the  innocent  child  from   being
             bastardised if his mother and her spouse were living  together
             during the time of conception……….”




     Before we proceed  to  consider  the  rival  submissions,  we  deem  it
necessary to understand  what  exactly  DNA  test  is  and  ultimately  its
accuracy. All living beings are composed of cells which  are  the  smallest
and basic unit of life.  An average human body has  trillion  of  cells  of
different sizes.  DNA  (Deoxyribonucleic  Acid),  which  is  found  in  the
chromosomes of  the  cells  of  living  beings,  is  the  blueprint  of  an
individual.  Human cells contain 46 chromosomes and  those  46  chromosomes
contain a total of six billion base pair in 46 duplex threads of DNA.   DNA
consists of four nitrogenous bases – adenine,  thymine,  cytosine,  guanine
and phosphoric acid arranged in a regular structure.   When  two  unrelated
people possessing the same DNA pattern have been compared, the  chances  of
complete similarity are 1 in 30 billion to 300  billion.   Given  that  the
Earth’s population is about  5  billion,  this  test  shall  have  accurate
result.  It has been recognized by this Court in the  case  of  Kamti  Devi
(supra) that the result of a genuine DNA test is  scientifically  accurate.
It is nobody’s case that the result of the DNA test  is  not  genuine  and,
therefore, we have to proceed on an assumption that the result of  the  DNA
test is accurate. The DNA test reports show that the appellant is  not  the
biological father of the     girl-child.






     Now we have to consider as to whether the DNA test would be  sufficient
to hold that the appellant is not the biological father of  respondent  no.
2, in the face of what has been provided under Section 112 of the  Evidence
Act, which reads as follows:


             “112. Birth during marriage, conclusive proof of  legitimacy.-
             The fact that any person was born during the continuance of  a
             valid marriage between his mother and any man, or  within  two
             hundred and eighty days  after  its  dissolution,  the  mother
             remaining unmarried, shall be conclusive proof that he is  the
             legitimate son of that man, unless it can be  shown  that  the
             parties to the marriage had no access to  each  other  at  any
             time when he could have been begotten.”




     From a plain reading of the aforesaid, it is evident that a child  born
during the continuance of a valid marriage shall be a conclusive proof that
the child is a legitimate child of the man to whom the lady giving birth is
married. The provision makes the legitimacy of the child to be a conclusive
proof, if the conditions aforesaid are satisfied.  It can be denied only if
it is shown that the parties to the marriage have no access to  each  other
at any time when the child could have been begotten.  Here, in the  present
case, the wife had pleaded that the husband had access to her and, in fact,
the child was born in the said wedlock, but the  husband  had  specifically
pleaded that after his wife left the matrimonial home, she did  not  return
and thereafter, he had no access to her.  The wife has  admitted  that  she
had left the matrimonial home but again joined her husband.  Unfortunately,
none of the courts below have given any finding with regard to this plea of
the husband that he had or had not any access to his wife at the time  when
the child could have         been begotten.


     As stated earlier, the DNA test is an accurate test and on  that  basis
it is clear that the appellant is not the biological father  of  the  girl-
child.  
However, at the same time, the condition precedent  for  invocation
of Section 112 of the Evidence Act has been established and no finding with
regard to the plea of the husband that he had no access to his wife at  the
time  when  the  child  could  have  been  begotten  has   been   recorded.
Admittedly, the child has been born  during  the  continuance  of  a  valid
marriage.
Therefore, the provisions of Section 112  of  the  Evidence  Act
conclusively prove that respondent No. 2 is the daughter of the  appellant.
At the same time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is not  the  biological  father.
In such circumstance, which would give  way  to  the  other  is  a  complex
question posed before us.


     We may remember that Section 112 of the Evidence Act was enacted  at  a
time when the modern scientific advancement and DNA test were not  even  in
contemplation of the Legislature.
The result of DNA test  is  said  to  be
scientifically accurate.  
Although Section  112  raises  a  presumption  of
conclusive proof on satisfaction of the conditions enumerated  therein  but
the same is rebuttable.
The presumption  may  afford  legitimate  means  of
arriving at an affirmative legal conclusion.
While the truth  or  fact  is
known, in our opinion, there is no need or room for any presumption.
Where
there is evidence to the contrary, the presumption is rebuttable  and  must
yield to proof.
Interest of justice is best  served  by  ascertaining  the
truth and the court should be furnished with the best available science and
may not be left to bank upon presumptions, unless science has no answer  to
the facts in issue.
In our opinion, when there  is  a  conflict  between  a
conclusive proof envisaged under  law  and  a  proof  based  on  scientific
advancement accepted by the world community to be correct, the latter  must
prevail over the former.


     We must understand the distinction between  a  legal  fiction  and  the
presumption of a fact.    Legal fiction assumes existence of a  fact  which
may  not  really  exist.   However  presumption  of  a  fact   depends   on
satisfaction of certain circumstances. Those circumstances logically  would
lead to the fact sought to be presumed.  Section 112 of  the  Evidence  Act
does not create a legal fiction but provides for presumption.
     The husband’s plea that he had no access to the wife when the child was
begotten stands proved by the DNA test report and in the  face  of  it,  we
cannot compel the appellant to bear the fatherhood of  a  child,  when  the
scientific reports prove to the contrary. We are conscious that an innocent
child may not be bastardized as the marriage between her mother and  father
was subsisting at the time of her birth,  but  in  view  of  the  DNA  test
reports  and  what  we  have  observed  above,  we  cannot  forestall   the
consequence.  It is  denying  the  truth.   “Truth  must  triumph”  is  the
hallmark of justice.


     As regards the authority of this  Court  in  the  case  of  Kamti  Devi
(Supra), this Court on appreciation of evidence came to the conclusion that
the husband had no opportunity whatsoever to have liaison  with  the  wife.
There was no DNA test held in the case.  In the said background  i.e.  non-
access of the husband with the wife, this Court held that the result of DNA
test “is not enough to escape from the conclusiveness of Section 112 of the
Act”.  The judgment has to be understood in the  factual  scenario  of  the
said case.  The said judgment has not held that DNA test is to be  ignored.
In fact,  this  Court  has  taken  note  of  the  fact  that  DNA  test  is
scientifically accurate.  We hasten to  add  that  in  none  of  the  cases
referred to above, this Court was confronted with a situation in which  DNA
test  report,  in  fact,  was  available  and  was  in  conflict  with  the
presumption of conclusive proof of legitimacy of the  child  under  Section
112 of the Evidence Act. In view of what  we  have  observed  above,  these
judgments in no way advance the case of the respondents.


     In the result, we allow this appeal, set aside the impugned judgment so
far as it directs payment of maintenance to respondent no. 2.  However,  we
direct that the payments already made  shall  not  be  recovered  from  the
respondents.
                           ........................J
                                           [CHANDRAMAULI KR. PRASAD]



                            .......................J
                                           [JAGDISH SINGH KHEHAR]
NEW DELHI
JANUARY 06, 2014



   -----------------------
3

Service matter -Part III of The Railway Servants (Discipline & Appeal) Rules, 1968 Penalty 6(vii)- Disproportionate penalty - Removed from service for the bribe of petty amount - Punishment is disproportionate - not habitual briber-demanded petty amounts for issuing Fit Certificates - Apex court order for compulsory retirement as suitable penalty and order for payment of retirement benefits as he rendered service for 23 years = Ishwar Chandra Jayaswal …..Appellant Versus Union of India & Ors. …..Respondents = Published in judis.nic.in/supremecourt/filename=41126

   Service matter - Part  III  of   The   Railway   Servants (Discipline & Appeal) Rules, 1968 Penalty 6(vii)- Disproportionate penalty - Removed from service for the bribe of petty amount - Punishment is disproportionate - not habitual briber-demanded petty amounts for issuing Fit Certificates - Apex court order for compulsory retirement as suitable penalty and order for payment of retirement benefits as he rendered service for 23 years =

“whether  the  punishment
           of removal of service of the petitioner on the alleged demand of
           meagre amount  of  Rs.18-45  is  contrary  to  the  doctrine  of
           proportionality”.=
   In the present case, the Appellant has served  the
           Respondents for a period of twenty three years and removal  from
           service for the two charges  levelled  against  him  shocks  our
           judicial  conscience.   
Part  III  of   The   Railway   Servants
           (Discipline & Appeal) Rules, 1968 contains  the  penalties  that
           can be imposed against a Railway servant, both  Minor  Penalties
           as well as Major Penalties.  
We have already noted that  it  has
           not been established that the Appellant  had,  as  a  matter  of
           habit or on a wide scale,  made  illegal  demands  from  Railway
           servants desirous of  obtaining  a  Fit  Certificate.   
However,
           since two of the three charges have been proved, we are  of  the
           considered opinion that the imposition of compulsory  retirement
           i.e. Penalty 6(vii) would have better and more appropriately met
           the ends of justice.  
While this would have instilled sufficient
           degree of fear in the mind of the employees, it would  also  not
           have set at naught several years of service which the  Appellant
           had already given to the Respondent-Indian Railways.   
We  think
           that deprivation of retiral benefits  in  addition  to  loss  of
           service is  entirely  incommensurate  with  the  charge  of  the
           Appellant having taken very small sums of money for the issuance
           of Fit Certificate to other Railway employees.``
        7. It is in these premises that the Appeals are  accepted  and  the
           impugned Order dated 11.10.2010 is  set  aside.   The  Appellant
           shall be deemed to  have  compulsorily  retired  under  Part-III
           Penalty 6(vii) of the aforementioned Railway Rules  with  effect
           from 22.1.1991.  If he is entitled to retiral or other  benefits
           on the said date, the Respondents shall make  necessary  payment
           within three months from today.  This decision is restricted  to
           the facts of the present case.     

                                                       REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOs.   48-49  OF 2014
              [Arising out of S.L.P.(C)Nos.20506-20507 of 2012]


      Ishwar Chandra Jayaswal                           …..Appellant


            Versus


      Union of India & Ors.                             …..Respondents








                               J U D G M E N T








      VIKRAMAJIT SEN, J.


        1.  Leave  granted.   These  Appeals  assail  the  Judgment   dated
           11.10.2010 of the Division Bench of the High Court of Judicature
           at Allahabad in Civil Misc. Writ Petition No.38190  of  2004  as
           well as the subsequent Order dated 28.3.2012 by which  a  Review
           Application in respect of the former was dismissed.
        2. The Division  Bench  was  confronted  with  the  dismissal  from
           service of the Appellant Dr.  Ishwar  Chandra  Jayaswal  against
           whom three Articles of Charge had been  framed.   Article-I  was
           that he demanded and accepted a sum of Rs.26/- from  Shri  Pyare
           Ram, Khalasi for  issuing  in  his  favour  a  Fit  Certificate.
           Article-II, in similar vein was that the Appellant demanded  and
           accepted a  sum  of  Rs.34/-  from  Shri  Nandlal,  Semi-skilled
           Revetter for issuing him a  Fit  Certificate.   Article-III  was
           that the Appellant had demanded and accepted Rs.18/-  from  Shri
           Balroop, Semi-skilled Revetter for issuing of  Fit  Certificate.
           The Inquiry Officer, after duly perusing  the  entire  evidence,
           returned a finding that Charges 1 and 3  had  been  proved.  The
           Disciplinary Authority, after considering the  response  of  the
           Appellant, by its Order dated 22.1.1991 imposed the  penalty  of
           removal of the Appellant from service.
        3. A Revision came to be filed which appears to have attracted  the
           gravamen  of  challenge  before  the  Division   Bench.    After
           considering the manner in  which  the  Revision  was  heard  and
           decided, the Division Bench in the impugned Order, has  come  to
           the conclusion that the President had decided  the  Revision  in
           accordance with law.
        4. In these proceedings, learned  counsel  for  the  Appellant  has
           confined his arguments to the ground –
“whether  the  punishment
           of removal of service of the petitioner on the alleged demand of
           meagre amount  of  Rs.18-45  is  contrary  to  the  doctrine  of
           proportionality”.
        5. It is now well settled that it is open  to  the  Court,  in  all
           circumstances, to consider whether the punishment imposed on the
           delinquent  workman  or  officer,  as  the  case  may   be,   is
           commensurate with the Articles of Charge levelled  against  him.
           There is a deluge of decisions on this question and  we  do  not
           propose to travel beyond
Union of India v. S.S. Ahluwalia (2007)   7 SCC 257
in which this Court had held that if the conscience of
           the Court is shocked as to the severity or inappropriateness  of
           the punishment imposed, it can remand the matter back for  fresh
           consideration to the Disciplinary Authority concerned.  In  that
           case, the punishment that had been imposed was the deduction  of
           10% from the pension for a period of one year.  The  High  Court
           had set aside that order.  In those premises, this Court did not
           think it expedient to remand the matter back to the Disciplinary
           Authority and instead approved the decision of the High Court.
        6. The Appellant before us is presently 75 years of  age.   At  the
           time when the Articles of Charge had been served  upon  him,  he
           had already given the best part of his life to  the  service  of
           the Respondent-Indian Railways.  It has been contended before us
           that the three charges that  have  been  sustained  against  the
           Appellant reflected only the tip of the iceberg; however,  there
           is no material  on  record  to  substantiate  this  argument  of
           Respondents. 
 In the present case, the Appellant has served  the
           Respondents for a period of twenty three years and removal  from
           service for the two charges  levelled  against  him  shocks  our
           judicial  conscience.   
Part  III  of   The   Railway   Servants
           (Discipline & Appeal) Rules, 1968 contains  the  penalties  that
           can be imposed against a Railway servant, both  Minor  Penalties
           as well as Major Penalties.  
We have already noted that  it  has
           not been established that the Appellant  had,  as  a  matter  of
           habit or on a wide scale,  made  illegal  demands  from  Railway
           servants desirous of  obtaining  a  Fit  Certificate.   
However,
           since two of the three charges have been proved, we are  of  the
           considered opinion that the imposition of compulsory  retirement
           i.e. Penalty 6(vii) would have better and more appropriately met
           the ends of justice.  
While this would have instilled sufficient
           degree of fear in the mind of the employees, it would  also  not
           have set at naught several years of service which the  Appellant
           had already given to the Respondent-Indian Railways.   
We  think
           that deprivation of retiral benefits  in  addition  to  loss  of
           service is  entirely  incommensurate  with  the  charge  of  the
           Appellant having taken very small sums of money for the issuance
           of Fit Certificate to other Railway employees.``
        7. It is in these premises that the Appeals are  accepted  and  the
           impugned Order dated 11.10.2010 is  set  aside.   The  Appellant
           shall be deemed to  have  compulsorily  retired  under  Part-III
           Penalty 6(vii) of the aforementioned Railway Rules  with  effect
           from 22.1.1991.  If he is entitled to retiral or other  benefits
           on the said date, the Respondents shall make  necessary  payment
           within three months from today.  This decision is restricted  to
           the facts of the present case.


      ............................................J.
                                             [T.S. THAKUR]



      ............................................J.
                                             [VIKRAMAJIT SEN]


      New Delhi
      January 3, 2014.


      -----------------------
5

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