Sujir Keshav Nayak v. Sujir Ganesh Nayak — 1991 DIGILAW 156 (KER)

Judgment :- Revision arises from the finding on issues 19 and 20 in O.S.137/1983 before Sub Judge, Kollam. That is a suit for a declaration that M/s Sujit Ganesh Nayak and Co., a partnership firm of which plaintiff and defendant were the partners, stood dissolved or is deemed to have been dissolved with effect from 21st December 1982 or from 14th March 1981 as claimed by the defendant and for rendition of accounts. A permanent injunction was also sought seeking to restrain defendant from appropriating or disposing of plaint A schedule immovable properties and the movables in the B schedule as well as for a permanent injunction to restrain defendant from interlaying with the rights of the plaintiff from entering the head office of the firm situated in item No.l of the plaint A schedule and inspecting books of accounts and movables kept therein. Plaintiff claimed 7/16 shares in the assets of the firm. For the purpose of court fee and jurisdiction, the share of the plaintiff was valued at Rs.10,050 under S.36 of the Kerala Court Fees and Suits Valuation Act and an amount of Rs.985 was paid as court fee. The relief of injunction was valued at Rs. 150 under S.27(c) and court fee of Rs. 15 was paid. Defendant filed written statement resisting the claim of plaintiff. In paragraph 31 of the replication filed by the plaintiff claim was made for an amount of Rs.28 lakhs. An additional written statement was filed by the defendant contending that the suit is not properly valued and the court fee paid is insufficient. 2. On the basis of the additional pleadings, issues 19 and 20 were raised as to whether the suit has been properly valued and whether the court fee paid is proper. Both sides were heard on these issues and the court below by order dated 13th September 1990 found that the plaintiff has not properly valued the suit and that proper court fee has not been paid. Holding that plaintiff is bound to value the suit as per the details given by him in paragraph 31 of his replication, the court directed plaintiff to take steps within one week to correct the valuation accordingly and to pay deficit court fee on making such correction. That finding is under challenge in this revision filed by plaintiff. 3. Holding that plaintiff is bound to value the suit as per the details given by him in paragraph 31 of his replication, the court directed plaintiff to take steps within one week to correct the valuation accordingly and to pay deficit court fee on making such correction. That finding is under challenge in this revision filed by plaintiff. 3. In the original plaint the suit is valued at Rs.10,050 under S.36 of the Kerala Court Fees and Suits Valuation Act (for short the act). Claim for an amount of Rs.28 lakhs is made in the replication and it is alleged that plaintiff is entitled to realise this amount from defendant at the time of settlement of accounts towards loss and damages sustained by plaintiff from 14th March 1981. It is on the basis of this pleading that the court below observed that the suit has been deliberately undervalued and directed plaintiff to take steps to correct the valuation. The main contention advanced by learned counsel for revision petitioner is that the suit being one for rendition of accounts of a dissolved partnership, court fee need be paid on the value of the plaintiffs share in the partnership as estimated by the plaintiff. That estimate had been made in the original plaint according to the counsel and the claim made in the replication has to be ascertained only at the stage of final decree for which court fee need be paid only at that stage. On the other hand, it is contended by learned counsel for respondent that the amount shown in the replication represents the estimate made by the plaintiff and court fee is liable to be paid on that amount. 4. The Additional issues arise from the additional pleading of plain tiff which is said to be a replication. What is a replication? The Civil Procedure Code nowhere mentions about a replication or a rejoinder. Rule 9 of Order 8 only enables a party to present a pleading subsequent to the written statement. What is permitted to be filed under the rule is only a pleading which as defined in Order 6 Rule 1 is a plaint or a written statement. Even for presenting a subsequent pleading the leave of the court is necessary and the court can fix such terms as it thinks fit in order to receive such subsequent pleading. What is permitted to be filed under the rule is only a pleading which as defined in Order 6 Rule 1 is a plaint or a written statement. Even for presenting a subsequent pleading the leave of the court is necessary and the court can fix such terms as it thinks fit in order to receive such subsequent pleading. "Replication" has been defined in Stroud's Judicial Dictionary as the plaintiffs answer to the defendant's original plea. "Rejoinder" is defined as the defendant's answer to the plaintiffs replication. 5. The object of a pleading is to narrow the parties to definite issues so that the parties can concentrate their attention on the matter in controversy to be settled by a decision on those issues. The sole object of the pleading is that each side may be fully aware of the questions that are to be raised and argued by the other side so that they have an opportunity to meet that case and bring forward such evidence as is necessary. A suit is a civil proceeding and every suit is instituted by presentation of a plaint. Order 8 rule 1 of C.P.C. enables the defendant to present a written statement at or before the first hearing of the suit or within such time as the court may permit. Before the amendment of this rule in 1976, the filing of the written statement by the defendant was discretionary. It was obligatory only when the court required the defendant to file a written statement within a specified time. The present rule has made it obligatory for the defendant to file a written statement in all cases and such written statement has to be filed on or before the first hearing or within such time as permitted by the court. Ordinarily the pleadings and with the filing of the written statement by the defendant. Thereafter neither plaintiff nor defendant is entitled to get the pleadings amended except in accordance with the provisions in the Code. The relevant provisions are rule 17 of Order 6 and rule 9 of Order 8 C.P.C. Normally no reply is necessary to a written statement for the purpose of denying the allegations in the written statement. But a reply may be filed if it is necessary for the plaintiff to set up some affirmative case in answer to the facts alleged by the defendant. But a reply may be filed if it is necessary for the plaintiff to set up some affirmative case in answer to the facts alleged by the defendant. It is to enable the parties to file a subsequent pleading in such and similar circumstances that rule 9 has been incorporated in Order 8 of the Code. That rule reads: "No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same." The rule requires the leave of the court before any party can present a further pleading after the filing of the written statement by the defendant except by way of defence to a set-off or counter-claim. Plain tiff may, with the leave of the court, file a written statement or the court may require him to file a statement. Defendant also can seek the leave of court and file a subsequent pleading on sanction of leave. In either case the additional or subsequent pleading forms part of the pleading of the parties. The rule contemplates a subsequent pleading in the form of a written statement and is referred to as a written ! statement and is referred to as a written statement even if it is filed by the plaintiff. The words "no pleading subsequent to the written statement of a defendant" imply that normally the pleading and by the filing of the written statement. That alone is the pleading which the court can look into. But power is conferred on the court to receive subsequent pleading meaning thereby plaint or written statement at the request of the parties or to direct the parties to file a written statement or an additional written statement. What can be required of plaintiff by the court is only a written statement or additional written statement. It necessarily follows that the subsequent pleading of the plaintiff should also be in the form of a written statement. Parties are given right to get the pleadings altered or amended at any stage of the proceedings under Rule 17 of Order 6. It necessarily follows that the subsequent pleading of the plaintiff should also be in the form of a written statement. Parties are given right to get the pleadings altered or amended at any stage of the proceedings under Rule 17 of Order 6. That rule stipulates that the court may, at any stage of the proceedings, allow either party to alter or amend the pleadings and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. When once such a right has been conferred on the parties under Rule 17 of Order 6, they can avail of the provision and get the pleadings altered or amended. But what is contemplated in Rule 9 of Order S. is not alteration or amendment of the pleading, but only filing of a subsequent pleading. 6. The Code of Civil Procedure does not compel the plaintiff to file any rejoinder to the allegations made in the written statement. The failure on the part of the plaintiff to deny the averments contained in the written statement will not also amount to an admission of the plea raised in the written statement. According to me Rule 9 of Order 8 is not intended to enable the plaintiff to file a subsequent pleading as a rejoinder to the written statement of the defendant. The circumstances under which a subsequent pleading can be filed by the plaintiff as envisaged under this rule were considered by the Patna High Court in Rohan Lai v. Prem Prakash (AIR 1980 Pat. 59). It was observed that it will not be advisable to lay down as an abstract principle that under Rule 9 of Order 8 leave should be obtained by the plaintiff to file subsequent pleading as a rejoinder to the written statement, additional written statement or the like, as this would result in lengthening the proceeding and is more likely to be abused. At the same time leave can be granted by the court if such a pleading is found necessary. While exercising the discretion under this rule, the court cannot permit to go on record a rejoinder which is inconsistent with the original pleading and which contains any allegation of fact inconsistent with the earlier pleading. At the same time leave can be granted by the court if such a pleading is found necessary. While exercising the discretion under this rule, the court cannot permit to go on record a rejoinder which is inconsistent with the original pleading and which contains any allegation of fact inconsistent with the earlier pleading. The Patna High Court held that the purpose of this rule is only to enable the parties to file an additional written statement where a plaint is amended or in a case where a minor defendant attains majority and wants to file his own written statement or a new defendant is added after the filing of the written statement. The Patna High Court has also visualised the situation of filing of a subsequent pleading under the provisions of this rule by either party if it wants to bring to the notice of the court any subsequent event having taken place which must be allowed to do as having a bearing on the controversy in the case. To this can be added an instance where the pleading of either party is vague or bareft of particulars. In such circumstances the court can always require the party to file a further statement showing the full particulars, lam incomplete agreement with the view expressed by the Patna High Court and hold that a subsequent pleading cannot be filed as a matter of course whereas it can be filed only in the circumstances enumerated above and in similar circumstances and that too with the leave of court. 7. The rule envisages granting of leave by court before permitting any party to file a subsequent pleading. Can permission be sought orally or is it necessary that it should be by means of an application. According to learned counsel for respondent the permission can be sought even orally and no written application is contemplated under the rule. I am of the view that a written application has to be filed by the party. That application should state the reasons why the party was unable to mention those things in the original written statement. The other party has to be given an opportunity to oppose that application and on hearing both parties the court has to decide whether leave can be granted or not. True it is the discretion of the court to grant leave or refuse it. The other party has to be given an opportunity to oppose that application and on hearing both parties the court has to decide whether leave can be granted or not. True it is the discretion of the court to grant leave or refuse it. But the court has to apply its mind and ascertain from the particulars furnished by both parties whether leave should be granted or refused. That can be done only on a proper application. The party intending to file a subsequent pleading has therefore to seek the leave of court by means of a proper application for that purpose. 8. The plaintiff has no right to file a replication as a matter of course except by way of defence to a set-off or counter claim. A subsequent pleading can be filed only on obtaining leave of court. Learned counsel for respondent Sri-Ps Sukumaran Nair would point out that the practice of filing a replication by plaintiff after filing of the written statement by the defendant is in vague in some parts of the State for the past several decades. I venture to say that whatever may be the practice followed and however long the period may be for which the practice continued, the practice has to be put an end to if it does not have the sanction of law and the rules of procedure. When the court does not enable the plaintiff to file a replication as a matter of course and insists the leave of court for entertaining a subsequent pleading, the procedure adopted by the courts in entertaining replication as a matter of course is illegal. If such a procedure still continues in any part of the State, it is high time that it should be stopped and the courts in those parts are to follow the procedure contemplated in Rule 9 of Order 8 strictly, that is, a replication can be received only after grant of leave by the court on a proper application presented by the plaintiff. 9. In this connection learned counsel for respondent has cited the decision of this Court in Kochukesavan Nair v. GouriAmma (1967 KLJ 685). 9. In this connection learned counsel for respondent has cited the decision of this Court in Kochukesavan Nair v. GouriAmma (1967 KLJ 685). It is observed that it is lawful for the plaintiff to file a replication to add to his pleas already made in the plaint, and the only condition thereon is leave of the court unless the replication is in answer to a claim to set off advanced in the written statement in which case no leave is necessary (the decision was rendered prior to the amendment of C.P.C. in 1976 whereby counter-claim also was included within Rule 9 of Order 8 C.P.C). It is further observed that even in cases that require leave, it is open to the court to grant leave with or without conditions. In that case the replication had been accepted by the court. Therefore it was have been given by the court and it then formed part of the plaintiffs pleadings and a supplement to the plaint in the case. The court was considering whether a replication can be filed or not and whether leave was necessary for presenting a subsequent pleading. Rule 9 of Order 8 enables a party to present a subsequent pleading, but only after obtaining leave of the court. This Court had noticed that provision while rendering that decision. It has been specifically laid down that the replication can be entertained only after leave is granted by the court. Since the court had acted on the replication, it was assumed that the requisite permission had been granted by the court. 10. It appears that the practice of putting in statements as a matter of course was prevalent in the early decades of this century in some parts of the then Bombay Presidency. That practice was deprecated by the Bombay High Court. In Chimawa v. Gangawa (AIR 1929 Bombay 413) that Court was considering a case where plaintiff was asked to file a counter written statement to the plea of the defendant. That was not a case of a set-off or a counter-claim. The Court observed: "I am aware that what I am constrained to call a vicious practice of putting in counter written statements as a matter of course has grown up in many subordinate Courts including the First Class Subordinate Judge's Court of Belgaum. That was not a case of a set-off or a counter-claim. The Court observed: "I am aware that what I am constrained to call a vicious practice of putting in counter written statements as a matter of course has grown up in many subordinate Courts including the First Class Subordinate Judge's Court of Belgaum. A wrong practice cannot make Order 8 Rule 9, Civil P.C., applicable nor confer power under Order 8, Rule 10. As the present case shows, the sooner this indiscriminate practice ceases, the better." It is surprising to note that this practice still continues in some parts of the State. This practice should cease from now. 11. In the present case the original written statement was filed on 12th August 1984 and issues were framed on the same day. Plaintiff moved the Court by LA. 1311/1987 for receiving a replication which is styled as In that replication an amount of Rs.28 lakhs was claimed by way of loss and damages since 14th March 1981. A copy was served on the defendant. The petition came up for orders on 30th July 1987 on which day it was adjourned to be called on 1st August, 1987. It was thereafter that the plaint was amended incorporating items 17,18 and 19 in the plaint A schedule. An additional written statement was filed by defendant consequent to the amendment wherein the availability of items 17 to 19 (wrongly shown as items 16 to 18 in the additional written statement) was questioned by the defendant. It was further contended that the valuation in the plaint has to be amended on the basis of the amount claimed in the replication and court fee has to be paid on the additional amount so claimed. Additional issues were framed and finding rendered on those issues which is under challenge in this revision. In the circumstances it has to be found that the court below has accepted the replication though no order has been passed on the petition. Additional issues were raised on the basis of the pleading contained in the replication and the additional written statement filed by the defendant though not in answer to the replication as such, but consequent to the amendment of the plaint including additional items. Additional issues were raised on the basis of the pleading contained in the replication and the additional written statement filed by the defendant though not in answer to the replication as such, but consequent to the amendment of the plaint including additional items. Following the decision of this Court in Kochukesavan Hair's case (1983 KLJ 387) (supra) it has to be held that the replication has formed part of 'the plaintiffs pleadings and can therefore be looked into. 12. The main question that arises in this revision is whether plaintiff is liable to amend the valuation in the plaint and pay additional court fee. S.36 of the Court Fees Act directs that fee shall be computed on the value of the plaintiffs share in the partnership as estimated by the plaintiff. That was originally estimated at Rs. 10,050 and court fee paid on that amount. An additional claim of Rs.28 lakhs is now made as the amount due to plaintiff towards loss and damages from 14th March 1981 onwards. The question arises whether rthe valuation made in the plaint requires amendment in the light of the averment contained in the replication. 13. Relying on the decision of this Court in Issac Peter and others v. K.V. Joseph and others (1983 KLJ 387) it is contended by learned counsel for revision petitioner that the Court Fees Act gives the plaintiff the freedom to value the plaintiffs share as estimated by him and pay court fee accordingly. The Court has power under S.36(2) to direct the plaintiff to pay the difference between the court fee actually paid and the court fee that would have been payable when the value of the plaintiffs share as ascertained in the suit exceeds the value as estimated in the plaint. S.36(2) further stipulates that no payment shall be made out of the assets of the partnership and no property shall be allotted towards plaintiffs share until the difference between the court-fee actually paid and the fee that would have been payable had the suit comprised the whole of the value so ascertained is paid. It is urged by learned counsel that the proper stage at which the balance court-fee has to be ascertained and paid is the settlement of accounts in the final decree and till then the liability is only to pay court-fee on the value estimated by the plaintiff. It is urged by learned counsel that the proper stage at which the balance court-fee has to be ascertained and paid is the settlement of accounts in the final decree and till then the liability is only to pay court-fee on the value estimated by the plaintiff. The order of the court below directing plaintiff to value the suit in accordance with the claim made in paragraph 31 of the replication is erroneous, according to the counsel. On the other hand, it is contended by learned counsel for respondent that the tentative valuation given by the plaintiff should not be arbitrary and unreasonable. Counsel draws attention to the decision' of the Supreme Court in Abdul Hamid v. Abdul Majid (AIR 1988 S. C. 1150). The Supreme Court held: "Ordinarily the Court shall not examine the correctness of the valuation chosen, but the plaintiff cannot act arbitrarily in this matter. If a plaintiff chooses whimsically a ridiculous figure it is tantamount to not exercising his right in this regard. In such a case it is not only open to the Court but its duty to reject such a valuation. The cases of some of the High Courts which have taken a different view must be held to be incorrectly decided". The decision in Gauri Lai v. Raja Babu (AIR 1929 Pat. 626) was approved by the Supreme Court. The respondent in that case filed a suit praying for accounts from appellant. Rejecting his claim to put any valuation under S.7(iv)(f) of the Court Fees Act, the High Court observed that when a plaintiff is required to place the valuation on his claim, he must state a valuation which need only be approximately correct. But the Patna High Court added that the valuation must not be arbitrary or manifestly inadequate. A three Judge Bench of the Supreme Court had considered this matter in Meenakshisundaram Chettiar v. Venkatachalam Chettiar (1980) 1 S.C.C. 616) wherein it was held: "In a suit for accounts it may not be possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know that state of affairs of the defendant's management and the amount to which he would be entitled on accounting. Therefore, in coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. There must be a genuine effort on the part of the plaintiff to estimate his relief and not a deliberate under estimation". 14. Though the court shall not ordinarily examine the correctness of the valuation shown by the plaintiff, the court has a duty to see whether the valuation so chosen by the plaintiff is ridiculously low. In such a case the valuation adopted by the plaintiff has to be rejected and a proper valuation has to be made. It is pointed out by learned counsel for respondent that the A schedule properties are worth several lakhs of rupees and the share of the plaintiff shown in the plaint is ridiculously low. That there has been a deliberate underestimate of the valuation is evident from the claim made in the replication for Rs.28 lakhs being the loss and damages from 14th March 1981 onwards. If that claim itself comes to Rs.28 lakhs, the value of the immovable properties, 19 in number, and the movables in the B schedule will be much more. Plaintiff can have his own estimate of his share in the partnership, but that estimate must not be arbitrary or manifestly inadequate. From the claim made in the replication, it is clear beyond doubt that the valuation has been made arbitrarily and the estimate made by plaintiff is inadequate, the court below was therefore right in directing plaintiff to value the suit in accordance with the claim made in paragraph 31 of the replication and in further directing plaintiff to take steps to correct the valuation accordingly and to pay the deficit court-fee. No illegality has been committed by the court below in making those directions. No interference is therefore called for in revision. In the result the revision is dismissed, but without costs.