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4. The question was argued how far parties to a suit are entitled to raise inconsistent pleas and what procedure should be accepted by Courts in such eases. Before the Judicature Acts the rule of pleading in England would seem to be that a plaintiff could not (without leave of Court) plead inconsistent facts. After the Judicature Acts it has been held in England that there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative. It is said that since the Judicature Acts, inconsistent defences, such as (a) never indebted and, (b) payment, are daily pleaded. In Berdan v. Greenwood (1887) 3 Ex. 251 (at p. 255), Thesiger, L.J., observed as follows:

In this state of circumstances the Judicature Acts and Orders came into existence and swept away the old forms and practice of pleading, leaving it open to a defendant, as the general rules, to raise, by his statement of defence without leave, as many distinct and separate, and therefore inconsistent defences as he may think proper, subject only to the provisions contained in Rule 1, Order 27, of the Rules of Supreme Court.

5. In In re Morgan Owen v. Morga (1878) 35 Ch. D 492 the Court of appeal held that pleadings will not necessarily be struck out as embarrassing because they are inconsistent. At p. 499, Lindley, L.J., observed:

7. The learned Judge added:

There is no difference in this respect between the practice in the Chancery Division and the practice in the Queen's Bench Division, where, we know ever since the Judicature Acts have been passed, inconsistent defences, such as "never indebted" and "payment" are daily pleaded and they give rise to no trouble. They are not considered embarrassing...

8. Under our Civil Procedure Code (Act 5 of 1908), Order 6, Rule 16, enables the Court at any stage of the proceedings, to order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay a fair trial of the suit.

11. Best, J., agreed with Shephard, J., that the case of a defendant was distinguishable from the case of a plaintiff: Mahomed Buksh Kahan v. Hussein Bibi [1888] 15 Cal. 684. This case is therefore a direct authority in favour of the defendants.

12. I may, however, state that the headnote of the report of the case in Mahomed Buksh Khan v. Hussein Bibi [1888] 15 Cal. 684 is too comprehensive and goes beyond the actual decision of the Privy Council which was to the effect that where a plaintiff sets up a forgery and undue influence both these questions could not be tried in the same suit. It is doubtful whether the Privy Council decision could be treated as an authority for the proposition that the inflexible rule of law is that inconsistent claims or defences could not be set up by the same party in the same litigation. In Jino v. Manon [1896] 18 All. 125 a plaintiff was allowed to sue for the cancellation of a bond on the ground that it was a forgery or in the alternative that it was void as unsupported by consideration. I do not think it necessary in this case to go into the question whether the rule applies to a plaintiff or not and whether the only limitation is not that contained in Order 6, Rule 16, Civil P.C. But the law seems to be clear that it is open to a defendant, to raise by his written statement as many distinct and separate and therefore inconsistent defences as he may think proper, and that the party aggrieved should be left to move the Court to take action under Order 6, Rule 16, in case the Court considers that the defence is embarrassing and thus direct one or more inconsistent defences to be struck out and the pleading amended accordingly.