Allowed to litigate after winning in another court

Madras High Court
Sakku Bai Amman vs R. Babu Reddiar And Ors. on 1 April, 1976
Equivalent citations: AIR 1977 Mad 223
Author: R Rao
Bench: R Rao, R Pandian
JUDGMENT Ramaprasada Rao, J.
1. The plaintiff in O. S. No. 65 of 1967 on the file of the Court of the Subordinate Judge of Cuddalore,
is the appellant. The plaintiff sued for specific performance of an agreement of sale contained in Ex.
A-1 dated 10-6-1965. Her case is that the first defendant, who is the father of defendants 2 to 7,
entered into such an agreement of sale to sell the suit properties for a sum and consideration of Rs.
18,502. Under the said agreement, a sum of Rs. 8,001 was to be paid on the date of the registration
of the agreement and the balance to be paid on the date of the registration of the agreement and the
balance to be paid at the time of the registration of the sale deed. A period of two years for
performance of the contract was provided for. The agreement also provided that in default by the
first defendant to execute the agreement in terms thereof, the plaintiff would be entitled to enforce
the agreement by a suit and also recover damages from the first defendant. Expressly it was
provided that if the plaintiff committed default, she should forfeit a sum of Rs. 1,000 from the sum
of Rs. 8,0001 and the balance should be paid back by her (him?) with interest to the plaintiff. A
separate agreement Ex. A-5 was also entered into almost contemporaneously with Ex. A-1 with
which we are not very much concerned in this case. According to the plaintiff, the first defendant
defaulted. After causing the suit notice Ex. A-6 to be issued to the first defendant and on the first
defendant repudiating his obligation under the agreement of sale, the plaintiff came to court.
2. The case of the first defendant is that the properties which are the subject-matter of the
agreement of sale are joint family properties of defendants I to 7 and in that sense the agreement
entered into by him is not enforceable. He would also contend that much against his wish the
plaintiff incorporated a recital in Ex. A-1 that the properties are his self-acquired properties and also
complained that the default clause was unconscionable and highly onerous. He would throw the
blame on the plaintiff as a party, who was initially unwilling to implement the agreement and would
state that the plaintiff has come up with this suit, since the properties have risen considerably in
value. Defendants 2, 3 and 6 to 11 adopted the written statement of the first defendant in respect of
the nature of the suit properties and they would also add that the agreement is unenforceable.
Defendants 4 and 5 remained ex parte.
3. On the above material pleadings, the following issues were framed.
1. Whether the properties in Schedules A and B of the plaint schedule belong to the joint family of
defendant and his sons?
2. Whether the suit agreement is not enforceable for all or for any of the reasons stated by the
defendants?
3. Whether the plaintiff is entitled to a decree for declaration of 1st defendant's title to the suit
properties?
4. Whether plaintiff is entitled to a decree for specific performance for sale of the A schedule
properties and for possession and for a security over the properties in Schedule B of the plaint
schedule as provided in the suit agreement?
5. Whether defendant 2 and 5 are estopped from denying 1st defendant's title to the suit properties?
6. Whether the lease alleged in favour of defendants 8 to 11 is true and valid and binding on
plaintiff?
7. Whether defendants 8 to 11 are tenants within the meaning of the Madras Cultivating Tenants
Protection Act?
8. Whether in the event of the Court holding that 1st defendant has no title to the suit properties
plaintiff is entitled to recover the sum of Rs. 8,001 and interest thereon with a charge on the suit
properties and also Rs. 5,000 as damages as claimed in the plaint?
9. To what relief is plaintiff entitled?
4. The learned trial Judge gave a money decree in favour of the plaintiff for a sum of Rs. 8,001 with
interest thereon at 6 per cent per annum from the date of Ex. A-5 till payment and also passed a
decree in the sum of Rs. 5,500 by way of damages for breach of the contract committed by the first
defendant. He effectively granted a relief to the plaintiff as desired by her since in this suit itself the
plaintiff sought alternative reliefs, either for specific performance of the contract as provided in Exs.
A-1 and A-5 or in the alternative for damages.
5. The suit having been decreed in favour of the plaintiff in so far as the alternative relief was
concerned, the plaintiff claims that she is an aggrieved person and, therefore, has filed the present
appeal stating that she ought to have been granted the relief for specific performance of the contract.
In effect, therefore, this appeal is by a party to a litigation, who has succeeded in the trial Court.
6. When the appeal was opened Mr. P.S. Ramachandran, learned counsel for the appellant, after
taking us through the relative facts and merits of the case and particularly, after bringing to out
notice the findings rendered by the trial Court in plaintiff's favour in the matter of the breach of the
contract committed by the first defendant, would urge that in the circumstances, the plaintiff is
entitled to a decree for specific performance and not to decree of the alternative relief for damages,
which the plaintiff asked for in the action. At this stage he was confronted with the question whether
such an appeal is maintainable at all. It was on this aspect of the case that this court was inclined
initially to hear full arguments, and if the appeal is not competent, it would not be necessary to go
into the merits of the case for a reappraisal of the same to find whether the plaintiff would be
entitled to the other relief of specific performance asked for by her. Mr. Venkateswara Rao, learned
counsel for the respondents would also urge that the plaintiff having succeeded in the suit cannot  file an appeal against such a judgment and decree, since it would be virtually giving a second

opportunity to the plaintiff to get a relief which she could not get in the trial Court, though she

would however, persuade the Court below to accept the alternative relief sought for by her.

7. We have heard counsel at length. In a civil litigation the plaintiff is the dominus litus and it is for

him to patternise his reliefs and ask for them. He has the liberty or indeed right to seek for more

reliefs than one, one being independent of the other. Sometimes a relief asked for him may be a

consequential one to the primary relief asked for by him. There are also cases in which litigants

specifically ask for reliefs in the alternative. The grammatical meaning of the expression 'alternative

reliefs' is rather clear. Apart from the compelling provisions of certain statutes such as the Specific

Relief Act (Ss. 22 to 24 thereto) and the C.P.C. O. II, R. 2 there are instances where the architect of

the litigation himself seeks for alternative reliefs. In essence, therefore, that litigant would be

content, if one or the other of the alternative reliefs asked for by him is granted by Court. On his own

volition, the plaintiff places such alternative reliefs on a par with each other and when he comes to

Court with a request that one or the other of such claims could be granted to him after the cause is

fully adjudicated upon. then he makes an election even at the threshold leaving entirely the grant of

one or the other of the reliefs to the Court, who is the ultimate arbiter to decide whether the plaintiff

should be granted one or the other of the alternative reliefs. Reliefs in the nature of alternative

reliefs are, therefore, to be treated as reliefs placed in the same plane and sought for by the plaintiff

as reliefs, which have equal force, the grant of one of which would suffice to satisfy the litigant, who

has come to Court, for a relief. Having so elected one of the alternative reliefs could be granted and

having got one the plaintiff cannot at any stage later of the suit such as the appellate stage to

approbate and reprobate and seek to resale from it to further his own purpose and intentions. The

plaintiff has to make up his mind, when he comes to Court on the bundle of facts on which the cause

of action is based to ask for a specific relief or more than one relief. Concurrently he can ask for

reliefs in the alternative also. If he adopts the last course. then he cannot, after the grant of one such

alternative relief to him complain that is still an aggrieved person who could carry the matter further

to the higher hierarchy for the grant of that relief which was not given by the trial Court.

8. In a case where the litigant seeks for such alternative reliefs and obtains one form the trial Court,

the question is, whether he could change his mind after having prompted the Court to act in the

manner he wanted and pretend as if he is aggrieved or he has a complaint against the judgment of

the Court and file an appeal against it. An appeal no doubt is a creature of statute. It is one of the

stages in the suit itself. Therefore, even the appellate Court is also bound to look into the pleadings

to appreciate and understand the relief which the parties to the litigation wanted from the Courts.

Though the word 'appeal' has not been iron jacketed in the shape of definition in the CPC, Yet it has

been always understood by Courts to mean "the removal of a cause from an inferior to a superior

Court for the purpose of testing the soundness of the decision of the inferior Court". It is also well

established that the party appealing must have been adversely affected by any determination made

by the trial Court. If, therefore, these are the primary limbs which constitute an appeal in the

commonsense point of view, we are of the view that a person, who sought for alternative reliefs, and

who obtained one of such reliefs from the trial Court, cannot be said to be a party adversely affected

by it, nor is he in a position from any reasonable point of view to take up the decision of the trial

Court to the higher Court in appeal for purpose of testing its correctness. What he wanted he got. He wanted one of two things. He got one out of them. But he suddenly changes his mind, wants to

prefer an appeal and convince the appellate Court that it would be better if he gets the other relief.

This would be giving a licence to litigants to change their boards from time to time according to their

conveniences and advantage and press their reliefs by taking matters which are convenient to them,

to the higher hierarchy so that they could persuade that higher Court to give them the relief not

given by the lower Court and which relief he asked for only in the alternative.

9. Many decisions have been cited by Mr. P.S Ramachandran on the one hand and Mr.

Venkateswara Rao on the other But we do not think that on a closer examination of the ratio in each

of these cases, a principle that is now sought to be propounded by Mr. P. S. Ramachandran is to be

found in any of those decided cases. He would rely upon the decision in Bank of Behar v.

Madhusudan Lal (AIR 1937 Pat 428).That was a case where a relief was asked for against two

defendants. The trial Court granted a relief only against one. The plaintiff appealed against it stating

that he was entitled on the merits to a decree against both the defendants. The plea that such an

appeal was incompetent was rightly negatived. The plaintiff who is the domineering personality in a

litigation, can as we said, ask for more reliefs than one, which are independent of each other. So long

as there is no scope for one relief being telescoped with the other or being consequential to the

other, they would be considered and treated as independent and separate reliefs. If, therefore, the

trial Court grants him one of such separate reliefs, then the plaintiff, in such circumstances, can

certainly be considered as an aggrieved person, since he can complain that all the independent

reliefs asked for by him have not been granted. This is the principle, which we find in Bank of Behar

v. Madhusudan Lal (AIR 1937 Pat 428).

10. The next decision relied on is Bariar Singh v. Durga Gir . That was again a case where the

mortgagor came with a suit for redemption and prayed for an alternative relief for damages. The

latter relief was granted. The Court held that he was not estopped from filling an appeal for getting a

decree for redemption. The facts in that case are found in the head-note.

"Where certain holding is sold for default of rent and other charges by the usufructuary mortgagees

and was in fact purchased by rehandars themselves, a subsequent purchaser from rehandars, to

whom the original rehan bond was handed over and who could therefore see who was liable to pay

the rent for the default of which the holding had been sold, but who was made no enquiry as to the

title of the transferor to the property in suit, cannot resist the claim of the mortgagor, for

redemption of the holding." In the circumstances of this case, the relief for redemption is totally

separable and district from the relief for damages. Though the plaintiff claimed them in the

alternative, yet in substance and in effect the reliefs were treated as independent reliefs. It was, in

those circumstances, the Court held that though the plaintiff in that case obtained a relief for

damages which was in the nature of an alternative relief, yet he could seek for a decree for

redemption, which was a distinct relief asked for by him.

11. The case under consideration is entirely different.

12. In fact, a Division, Bench of the Patna High Court in Amir Mahton v. Sheopujan Missir (AIR

1946 Pat 231), which had occasion to consider the principle behind the proposition that is beingargued before us, expressed the view thus:

"It is doubtful whether a general rule can be laid down that in all cases where an alternative relief

has been granted, the plaintiff has no right of appeal for getting a decree for the other relief which he

had claimed in the plaint."

That was a case where a party claimed recovery of possession of rehandar property or in the

alternative a mortgage decree by sale of the rehandar property. He was, however, granted a simple

money decree. In those circumstances, the Division Bench, having regard to the circumstances of

that case said:

"In cannot be said that he has succeeded in getting one of the two reliefs which he had claimed, as he

had not stated in the plaint that he would be satisfied with a simple money decree. Hence an appeal

against the decree lies."

It is, therefore, clear that the Division Bench of the Patna High Court did no lay down as a matter of

course that an appeal would lie, even if a litigant succeeded in securing one of the alternative reliefs

asked for by him, in so far as the other relief is concerned. We understand this decision as to mean

that if what was granted to the litigant was totally different from that which he had asked either in

the main or in the alternative, then the appellate Court can competently maintain an appeal against

the decree, though the grant prima facie serves the purpose of the plaint. While dealing with this

case, the Division Bench of the Patna High Court in Reajuddin Patwari v. Abdul Jobbar (AIR 1924

Cal 445). There the plaintiff preferred his cross-objections and his claim therein was that he was

entitled to khas possession on the ground that the defendants were trespassers. But in the

alternative he made a claim under the Bengal Tenancy Act for assessment of fair and equitable rent

and the trial Court granted him the latter relief under the Act. But in the cross-objections

apparently, the plaintiff wanted the other relief for possession, which he sought for to be granted by

the appellate Court. The Division Bench observed thus:

"It seems to me that he is not entitled say that he does not want that alternative relief which has

been granted to him, and that he desires to have the other relief which he claimed by way of

ejectment. In effect, the plaintiff expressed that he would be satisfied with either of the two prayers

which he made in his plaint and he succeeded in getting one and, therefore, he has no real cause for

complaint."

13. A reference in passing was made by the appellant's counsel to the decision of the Supreme Court

in Ramesh Chandra v. Chuni Lal . Far from assisting the plaintiff-appellant, in our view, this

decision is against him. The Supreme Court after accepting the well known propositions to which we 

shall presently refer observed thus:

"It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet

prefer an appeal against that decree. That many well have brought them within the principle that

when the plaintiff has elected to proceed in some other manner than for specific performance he

cannot ask for the latter relief. This is what Scrutton, L. J., said in Dexters Ltd. v. Hill Crest Oil Co. (Bradford) Ltd., (1926) 1 KB 348 at p. 358:

"So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against

it as being bad."

14. It was further observed:

"It startles me to hear it argued that a person can say the judgment is wrong and at the same time

accept payment under the judgment as being right.

This illustrates the rule that a party cannot approbate and reprobate at the same time. These

propositions are so well known that no possible exception can be taken to them."

To a query posed by us to Mr. P. S. Ramachandran as to whether his client desires to take the benefit

under the decree, he answered in the affirmative. Therefore, this is a clear case where the plaintiff

wants to keep the benefit granted for himself and try, if possible, to challenge the other portion of

the judgment, which is prejudicial to him. This, he cannot. Well known authors, who, while

interpreting the significance of alternative relief have also taken a similar view as that adopted by us.

To quote Mulla, 13th Edition, pages 421 and 422:

"Where however the plaintiff had sued for alternative reliefs and has been granted relief in respect of

one such relief a question as to whether he can appeal against the decree, which has refused the

other relief, the trend of decision is that he cannot appeal."

In the AIR Commentaries on the C.P.C., 7th Edn. Vol. II, page 2296, the authors observed as

follows:--

"Where the plaintiff asks for one of two alternative reliefs and is granted one, he cannot in appeal

contend that he should be given the other relief."

To some extent the ratio in the decision is Somasundaram v. Chidambaram supports our view.

There a Division Bench of our High Court, presided over by Rajamannar C. J., stated thus:

"It was open to the respondent to have abandoned his claim for specific performance and to have

prayed for the alternative relief only before the Court below. He certainly had the option of choosing

one of the alternative claims. But he was evidently quite satisfied with pressing for the relief of

specific performance and he did obtain that relief. Till his learned counsel began his argument

before us there was no mention that the respondent wanted the alternative relief in lieu of specific

performance. No authority was cited to us that the appellate Court is bound to accede to this

demand by the plaintiff even after the decree of the lower Court."

We may add that this was the case in which no alternative prayer was asked for at all.

15. It is, therefore, clear to us that as the choice of the reliefs is always with the plaintiff, who is the

dominus litus in a litigation, he could seek for more than one relief, seek for more than one

independent relief or ask for alternative reliefs. If he asks for the last of such reliefs, then he is

placing the reliefs so sought for by him on a par with each other and if the Court trying the

subject-matter grants him one relief, then it follows that he as the benefit of the relief and he cannot

throw over board such a benefit with a design or motive or to further his own cause by seeking

umbrage in an appellate Court and ask for the relief not granted to him, which as already stated, he

only asked for in the alternative. 'Alternative' is an expression, which indicates a choice of the person

and if that choice is exercised by him, then he cannot afterwards blow not and cold and seek for

relief as he desires by throwing overboard the benefits which he has secured on a full trial in the trial

Court. This would he encouraging, as we said, the whims and fancies of a litigant. We are, therefore,

of the view that having regard to the trend of decisions here and elsewhere and on the basic

reasonable principle that a man cannot approbate and reprobate, this appeal is not maintainable.

16. In this sense, it is not necessary for us to go into the merits and Mr. Ramachandran has not

taken us through such merits as he is also conscious that it is unnecessary for him to do so, As in our

view, the appeal is incompetent, it is dismissed on that ground, but there will be no order as to costs

in this appeal.

17. Appeal dismissed.