Allegans Contraria Non-Est Audiendus
Allegans Contraria Non-Est Audiendus is a Latin Maxim which in simple words means that a person making contradictory allegations ought not be heard. This is the principle of good faith that a person should not be allowed to testify hot and cold at different times about the same event.

The legal maxim is also called 'estoppel' in legal parlance. The maxim means that if a person states something in good faith on one event and says the contrary about the same event that shall not be allowed. The contradiction in the statements is likely to give the benefit of the doubt in cross-examinations to invalidate the statements. Thus, it can be comprehended by the principle that a person producing contradictory statements shall not be heard in a court of law.

The said Latin Maxim reads as under in Brooms Legal Maxims at page 103:
Allegans contraria non est audiendus" "this elementary rule of logic, which is frequently applied in our Courts of Justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to "blow hot and cold" with reference to the same transaction, or insist at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.

At page 197 of the same volume, we may, therefore, lay it down as a general Rule, applicable alike in Law and Equity, that a party shall not entitle himself to substantiate acclaim or, to enforce a defence, by reason of acts or nature and quality; and further, that where misrepresentations have been made by one of the two litigating parties, in his dealings with the other, a Court of Law will either decline to interfere, or will so adjust the equities between them, as to prevent an undue benefit from accruing to that party, who is unfairly endeavouring to take advantage of his own wrong.

In Trayner's Latin Maxims, this maxim is referred to at page 41 of the 4th Edition thus:
Allegans contraria non-est audiendus: He is not to be heard who alleges things contradictory of each other. For example no one can be heard to maintain that a deed is invalid as regards some obligation, which it imposes on him, and yet valid in so far as it confers upon him a right. In other words, no one is permitted at the same time, to approbate and reprobate. It must be kept in view, however, that this does not militate against what is fair alternate pleading.

Bigelow on Estoppel, six Edition, states the principle as follows:
If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts or justice would in most cases be paralyzed the coercive process of the law, available only between those who consented to its exercise, could be set at aught by all. But the rights of all men, honest and dishonest are in keeping of the Courts, and consistency of proceeding is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one, who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it, one cannot play fast and loose.

It would be apposite to refer to the celebrated book titled 'Administrative Law' by Sir William Wade (Eighth Edition by Wade and Forsyth -Oxford University Press), the 'Estoppel' has been explained at p.242 as under:

"The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong. Justice here prevails over truth. Estoppel is often described as a rule of evidence, but more correctly it is a principle of law. As a principle of common law it applies only to representations about past or present facts."

This Maxim dates back to almost 5 centuries. In Pickard v. Sears, (1837) 6 Ad & El 469, 474, it has been held that where a person "by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time."

It is worth mentioning that Section 115 of the Evidence Act incorporates a salutary principle of common law based on the maxim allegans contraria non est audiendus (a person alleging contradictory facts should not be heard).

Section 115 of the Evidence Act reads thus: Estoppel
"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."

Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

It would be trite to refer to B.S. Lail v. Sardar Mal Lalwani, AIR 1964 M.P. 124, wherein the Madhya Pradesh High Court held thus:

In my opinion the contention raised on behalf of the plaintiff-appellant is correct and ought to be accepted. It is well settled that a party cannot be allowed to approbate and reprobate. This principle is based on the maxim "allegans contraria non est audiendus" it mean she shall not be heard who says things contradictory to each other. The maxim applies to proceedings in Court; it creates a sort of estoppel.

In case of Vallapareddy Sumitra Reddy and others vs. Kasireddy Laxminarayana Reddy and Ors.,2002(6)ALT645 it was held by the Hon'ble Andhra Pradesh High Court that the principle of Allegans Contraria Non-Est Audiendus means a party cannot be allowed to approbate and reprobate. It means that no one shall state contradictory things to each other. This maxim is applied in form of 'estoppel' in the said court proceedings.

It would be apropos to refer to a judgment of the Jammu & Kashmir High Court (Srinagar Bench) in Abdul Aziz Khan & another vs. Ghulam Mohd. Langoo 2021 AIR CC 2057, wherein the Court observed thus:

19.The principles, underlying aforesaid decisions, would clearly indicate that a party cannot be permitted to change the stand which would frustrate the case of other-side. This is the elementary rule of logic. It is well settled that a person is not to be heard who alleges things contradictory to each other. As the maxim goes allegans contraria non est audiendus.

Even the Supreme Court in a decision reported in Heeralal v. Kalyal Mal, AIR 1998 SC 618, observed that once written statement contains admission in favour of the plaintiff, by amendment such admission of defendants cannot be allowed to be withdrawn, if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. The principle enunciated by the Supreme Court squarely applies to the fact situation of the present case.

It would be appropriate to refer to the case of Transmission Corp. of A.P Ltd. & Anr. vs Sai R.P.Pvt. Ltd. & Ors (2010) INSC 498; (2011) 11 SCC 34, wherein the Apex Court observed thus:

The parties can hardly deny the facts as they existed at the relevant time, just because it may not be convenient now to adhere to those terms. Conditions of a contract cannot be altered/avoided on presumptions or assumptions or the parties having a second thought that a term of contract may not be beneficial to them at a subsequent stage. They would have to abide by the existing facts, correctness of which, they can hardly deny. Such conduct, would be hit by allegans contraria non est audiendus.

The Apex Court in B.L. Sreedhar & Ors vs K.M. Munireddy (Dead) And Ors. 2003 (2) SCC 355, dealing with this maxim held thus:

On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim, allegans contrarir non est audiendus (a party is not be heard to allege the contrary) and is that species of presumption juries et de jure- (absolute or conclusive or irrebutable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done; it is in truth a kind of argumentum ad hominem.

It would be befitting to refer to Madras High Court judgment in Pappannan vs Kolandasamy 2012 (3) MWN (Civil) 536, wherein it was held thus:

17. I recollect the maxim - falsus in uno, falsus in omnibus false in one thing, false in everything. This is not the maxim, which is recognised in India and in the meantime, I cannot lose sight of one other maxim Allegans contraria non est audiendus A person making contradictory allegations is not to be heard and also the decision of the Hon'ble Apex Court reported in (2012) 5 MLJ 618 (SC) [A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam rep.by its President etc.]. Certain excerpts from it would run thus:

False and irrelevant pleas:
41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs"

It would be worthwhile to refer to the case of Gauhati High Court in the case of Union of India v. Shyamal Paul decided on Sep 10, 2015 wherein the Court observed thus:

At three different spells, three different dates are given from which period of absence cannot be ascertained. The facts narrated are contrary to each other. It is the basic tenet of law canonised in the dictum Allegans Contraria Non Est Audiendus (He is not be heard who alleges things contradictory to each other).

The Bombay High Court in Shalini Vyankatesh Puntambekar v. Jayaprakash R. Agarwal (2002)2BOMLR52 discussed & applied this maxim & observed thus:

6. The principles underlying the aforesaid decisions would clearly indicate that the party cannot be permitted to change the stand which would frustrate the case of the other side. This is the elementary rule of logic. It is well settled that he is not to be heard who alleges things contradictory to each other.

As the maxim goes Allegans Contraria Non Est Audiendus. Even the Apex Court in the Decision reported in Heeralal's case (supra) observed that once written statement contains admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn, if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice."

Lastly, it would be apposite to refer to the case of Prince of Arcot Endowments Estate v. Ponnuswami Nattar, AIR 1955 NUC (Mad) 3924, wherein it was observed thus:

"A party litigant cannot be permitted to assume inconsistent positions in Court to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponents. The principle is: Allegans contraria non est audiendus. (He is not to be heard who alleges things contradictory to each other.) This principle applies not only to successive stages of the same suit but also to another suit provided that the second grows out of the judgment of the first"

The aforementioned Maxim 'Allegans Contraria Non-Est Audiendus' is undoubtedly applicable in all legal proceedings under all different enactments and is a cardinal rule of both Equity & Law.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]