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2010 DIGILAW 934 (KAR)

Glen Fredric Picardo v. Rodney Picardo

2010-08-30

A.N.VENUGOPALA GOWDA

body2010
ORDER A.N. Venugopala Gowda, J. 1. Petitioner has instituted a suit for partition and separate possession on 20.04.2002 against the Respondents. 1st Defendant having died, his legal representatives have been brought on record. The legal representatives of 1st Defendant have filed written statement on 17.10.2008, resting their case on a Will, said to have been executed-by the mother of the Petitioner in favour of the deceased 1st Defendant. The Petitioner filed I.A. No. 7 on 21.04.2009 under Section 151, Code of Civil Procedure, seeking leave of the Court to file replication to the written statement filed by the legal representatives of deceased 1st Defendant. The legal representatives of the 1st Defendant filed objections to I.A No. 7 on 30.05.2009. The Petitioner filed a memo on 06.02.2010 to treat I.A. No. 7 as one having been filed under Order VIII, Rule 9, Code of Civil Procedure The trial Court, upon consideration, did not find merit in I.A. No. 7 and hence the same was rejected. Aggrieved, the Plaintiff has filed this writ petition. 2. Sri H.S. Vivekananda, learned Counsel appearing for the Petitioner, firstly contended that, the trial Court has misread and misdirected itself with regard to the scope of Rule 9 under Order VIII of Code of Civil Procedure Secondly, the decision in the case of Amalgamated Bean Coffee Trading Co. Ltd. v. Zarir Minoo Bharucha and Anr., ILR 2005 Kar 2089, was not correctly analysed. Thirdly, replication can be filed to the written statement for not only denying the pleading in the written statement but also for clarifying the facts and by holding otherwise, the trial Court has committed irrationality and illegality. 3. Sri J. Kanikaraj, learned Counsel appearing for the Respondent No. 1 on the other hand contended that, Order VIII, Rule 9 does not complete a reply to the written statement of the Defendant from the Plaintiff. He contends that, by obtaining leave of the Court, a written statement or an additional written statement can be filed by the Plaintiff, if there is by way of defence to the suit, a set-off or counter-claim and not otherwise. He contends that, in the defence filed to the instant suit, there is neither a set-off nor any counterclaim and hence the prayer in I.A. No. 7 being misconceived was rightly rejected by the trial Court. 4. He contends that, in the defence filed to the instant suit, there is neither a set-off nor any counterclaim and hence the prayer in I.A. No. 7 being misconceived was rightly rejected by the trial Court. 4. In the written statement filed by the legal representatives of the 1st Defendant, it was contended that, the mother of the Plaintiff has executed a Will in respect of item No. 1 of the suit schedule 'A' property in favour of Defendant No. 1. In the replication sought to be filed along with I.A. No. 7, the Plaintiff has attempted to deny the Will. The trial Court has considered the decision reported at ILR 2005 Kar 2089 (supra) and has held that, when once the Defendant has filed the written statement, there is no provision under law to file a replication to the written statement and the said decision has no application. 5. In the case reported at ILR 2005 Kar 2089, Petitioner had filed the suit against the Respondents for the relief of specific performance to execute and register a sale deed and to deliver possession of the suit schedule property. The Defendants filed separate written statements. The Plaintiff sought leave of the trial Court to file a rejoinder by filing an application under Order VIII, Rule 9 read with Section 151 of Code of Civil Procedure The trial Court on consideration of the materials on record opined that, leave to file replication cannot be granted. Said order was questioned in this Court. It was held that, the Code of Civil Procedure for from pinning down the Plaintiff to the plaint and Defendant to the written statement does contemplate further pleading. It was held that, it is permissible to the Plaintiff to file a replication to add to his pleas already made in the plaint, subject to the condition that leave is granted by the Court and the same is meant for denying or clarifying the facts stated in the written statement. Directing acceptance of the replication to a limited extent, the writ petition was disposed of. 6. Directing acceptance of the replication to a limited extent, the writ petition was disposed of. 6. Having heard the learned Counsel on both sides and having perused the writ petition papers, the point for consideration is: Whether Order VIII, Rule 9 of Code of Civil Procedure provides for filing of reply by the Plaintiff to the written statement of a Defendant, when there is neither a set-off nor a counter-claim putforth in the written statement? 7. To answer the point, it is necessary to notice the provision under Rule 9 of Order VIII of Code of Civil Procedure, 1908, which reads as follows: Subsequent pleadings - No pleading subsequent to the written statement of a Defendant other than by way of defence to a setoff (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. 8. Rule 1 under Order VI of Code of Civil Procedure defines "Pleading" to mean "plaint or written statement." Rule 2 is about the pleading to state material facts and not evidence. Rule 4 is with regard to the particulars to be given where necessary. Rule 14 provides that every pleading shall be signed by the party and his pleader. Rule 15 is with regard to verification of pleadings. Rule 17 is with regard to amendment of pleadings. The provisions under Order VII are with regard to plaint and the documents relied on in the plaint. The provisions under Order VIII are with regard to the written statement, set-off or counterclaim. 9. A plain reading of Rule 9 under Order VIII does not provide for a reply by the Plaintiff, subsequent to the written statement of a Defendant, other than by way of defence to a set-off or counter-claim, with the leave of the Court and upon such terms as the Court thinks fit. However, the said provision enables the Court to call upon a party to file a written statement or an additional written statement within a fixed time. However, the said provision enables the Court to call upon a party to file a written statement or an additional written statement within a fixed time. If, in the written statement filed by the Defendant there were to be a set-of or counter-claim, the Plaintiff who stands in the position of a Defendant insofar as the claim with regard to either the set-off or counter claim, is required to be granted leave to file a written statement. The intention of legislature in enacting Rule 9 is to meet the said situation and not to enable the Plaintiff to file subsequent pleading by way of a replication. 10. In the case ofMohammed Abdul Gafoor and Ors. v. Peddappayachari and Anr., reported in ILR 1980 Kar 248, Plaintiff instituted a suit for declaration and possession. Defendants filed written statement and resisted the suit. Issues were raised. The trial Court decreed the suit, which when appealed was affirmed and thereafter second appeal was filed. One of the points raised for consideration was: Whether the learned Munsiff could raise the issue of res judicata, which was not covered by the pleadings, mainly relying on the reply statement filed by the Plaintiff without the permission of the Court? Noticing Rule 9 of Order VIII Code of Civil Procedure relating to subsequent pleadings, it has been held as follows: 12. Thus, if, in the written statement, the Defendant sets out a counter claim or claims a set-off, the Plaintiff has a right of reply to the written statement and that forms part of the pleadings". 11. In the case of B.N. Padmanabhiah v. Sri Jayamuragarajender Oil Mills, Davanagere and Ors., reported in 1961 Mys LJ 904, a Division Bench of this Court has held as follows: The reply statement cannot be said to be a part of the pleadings. The Defendants had no opportunity to meet the allegations contained in the reply statement. It has been pointed out that, Defendant will have no chance to meet the case made 'out in the reply' statement and, as such, the reply statement has to be excluded from the pleadings. 12. While deciding the case reported at ILR 2005 Kar 2089, attention of Learned single Judge has not been drawn to attention of the said Division Bench judgment and also the decision in the case of Mohammed Abdul Gafoor (supra). 12. While deciding the case reported at ILR 2005 Kar 2089, attention of Learned single Judge has not been drawn to attention of the said Division Bench judgment and also the decision in the case of Mohammed Abdul Gafoor (supra). The ratio of law in the case reported at ILR 2005 Kar 2089 being not in conformity with the statutory provision and the two decisions noticed supra, with due respect, I am unable to follow the said decision. 13. In my opinion the pleadings would be complete with the filing of the plaint, written statement or additional written statement to a set-off or any counter-claim with the leave of the Court. Any addition or deletion to the said pleadings can be by way of an amendment being permitted under Rule 17 of Order VI, Code of Civil Procedure and not by granting leave to file replication. For amendment of pleadings, the permission of the Court is required to be obtained, as is clear from the words contained in Rule 17 of Order VI Code of Civil Procedure In the said view of the matter, the trial Court is right in recording the finding that, when once the Defendant places his defence by way of a written statement, there is no provision to file a replication to the written statement. 14. The impugned order is neither irrational nor illegal. There is no procedural impropriety and hence no interference in exercise of supervisory jurisdiction is called for. In the result, the writ petition is devoid of merit and shall stand dismissed. However, keeping in view the relationship between the parties, there shall be no order as to costs.