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2012 DIGILAW 260 (AP)

Aloor Subrahmanyam v. Suthram Prabhakar

2012-03-12

C.V.NAGARJUNA REDDY

body2012
Judgment : This civil revision petition arises out of order, dated 06.09.2010, in I.A.No.835 of 2008, in O.S.No.53 of 2008, on the file of the learned Principal Senior Civil Judge, Chittoor. I have heard Sri S.V.Bhatt, learned counsel for the petitioner, and Sri B.Pridvi Kumar, learned counsel, representing Sri K.V.L.Narasimha Rao, learned counsel for respondent No.1. Even though notice is sent to respondent No.2, the same has not returned served or otherwise. Respondent No.2 has adopted the stand of respondent No.1 taken in the written statement filed before the lower Court and as respondent No.1 is contesting this case, it is not necessary to await service of notice on respondent No.2. The petitioner filed the above-mentioned suit for declaration of his exclusive right over the suit wall. Respondent No.1 filed a written statement, wherein he has also claimed exclusive right over the suit wall. Respondent No.2 adopted the written statement of respondent No.1. Following the written statement of respondent No.1, the petitioner filed I.A.No.835 of 2008 seeking leave of the Court for filing rejoinder. Respondent No.1 contested the said application. By order, dated 06.09.2010, the lower Court dismissed the said application. Feeling aggrieved thereby, the petitioner filed the present civil revision petition. A perusal of the order of the lower Court shows that the sole ground on which the petitioner’s application was dismissed was that he has failed to indicate in his petition as to what are the facts that have come to light through the pleadings of respondent No.1 and that the leave of the Court cannot be obtained for rejoinder without his coming out with specific pleading as to the necessity for filing such rejoinder. The learned counsel for the petitioner submitted that the approach of the lower Court is grossly erroneous. He has submitted that the petitioner has filed the application for the leave of the Court for filing rejoinder at the right earnest i.e., within short period after respondent No.1/defendant No.1 filing written statement and respondent No.2/defendant No.2 adopting the said written statement. The learned counsel for the petitioner submitted that the approach of the lower Court is grossly erroneous. He has submitted that the petitioner has filed the application for the leave of the Court for filing rejoinder at the right earnest i.e., within short period after respondent No.1/defendant No.1 filing written statement and respondent No.2/defendant No.2 adopting the said written statement. The learned counsel also submitted that in the affidavit filed in support of the petitioner’s application, he has clearly stated that certain facts pertaining to O.S.No.89 of 2008 on the file of the learned Junior Civil Judge, Kuppam filed by two persons, by name, Suthram Gopalaiah and Suthram Ramakumar, against the respondents, came to his knowledge recently and the facts pleaded in the said case are very much relevant to the present case. The learned counsel further submitted that the written statement has referred to two documents, the recitals of which need to be explained in the rejoinder. He has placed reliance on the judgment of this Court in Malgireddy Venkata Ramana v. Thippana Narsi Reddy ( 2010(3) ALT 630 ), in support of his submission that an application for rejoinder can be filed to explain the contents of the written statement on material aspects. The learned counsel for respondent No.1, while seeking to sustain the order of the lower Court, relied upon the judgment of this Court in Sardar Darshan Singh v. Surjeeth Kaur ( 2007(3) ALT 193 )and also the principles laid down in Shikharchand Jain v. Digamber Jain Praband Karini Sabha ( AIR 1974 SC 1178 ), which was referred to and relied upon by this Court in Sardar Darshan Singh (2 supra). I have carefully considered the respective submissions of the learned counsel for the parties. Order VIII Rule 9 CPC deals with subsequent pleadings. It has imposed bar on the parties filing pleadings subsequent to the filing of the written statement other than by way of defence to set-off or counter-claim, except by the leave of the Court. This provision per se does not stipulate any limitations on the power of the Court to allow the parties to file subsequent pleadings. However, the Courts have interpreted this provision by reading certain limitations into the same, obviously to ensure that the scope of the proceedings is not unduly enlarged and the suit proceedings are not dragged on in the guise of filing subsequent pleadings. However, the Courts have interpreted this provision by reading certain limitations into the same, obviously to ensure that the scope of the proceedings is not unduly enlarged and the suit proceedings are not dragged on in the guise of filing subsequent pleadings. In Shikharchand Jain (3 supra), the Supreme Court broadly indicated three parameters on which leave for filing subsequent pleadings can be granted. They are: (1) the relief claimed originally by reason of subsequent change has become inappropriate; or (2) where it is necessary to take notice of changed circumstances in order to shorten the litigation; or (3) to do complete justice between the parties. In Sardar Darshan Singh (2 supra), this Court has held that while permitting subsequent pleadings, the plaintiff cannot be permitted to raise inconsistent pleas or alter the cause of action. In Malgireddy Venkata Ramana (1 supra), this Court held that the primary object of subsequent pleading is to supply what has been omitted inadvertently or unintentionally or to deny or clarify the facts stated in the pleadings of the opposite party, that in the rejoinder the plaintiff can be permitted to explain the additional facts, which have been incorporated in the written statement and that the application under Order VIII Rule 9 CPC cannot be treated as one under Order VI Rule 17 CPC as both are contextually different. In my opinion, the legislature has designedly omitted to lay down any guidelines restricting the scope of the Courts to specific instances while granting leave for filing subsequent pleadings. From this itself, the legislative intention can be gathered to the effect that unless the Court forms an opinion that the application for leave is filed for reasons, such as procrastinating the suit proceedings or to widen the scope of the suit or change the nature and character of the suit proceedings, the applications shall ordinarily be allowed. By permitting such subsequent pleadings, the Courts can avoid multiplicity of proceedings. That approach will also help the Court to comprehensively and effectually decide all the questions arising in the case with reference to the complete information furnished by the parties through their original as well as subsequent pleadings. Viewed from this angle, the provision of Order VIII Rule 9 needs to be construed in a manner which would ordinarily permit the party to file subsequent pleadings rather than scuttling their right to do so. Viewed from this angle, the provision of Order VIII Rule 9 needs to be construed in a manner which would ordinarily permit the party to file subsequent pleadings rather than scuttling their right to do so. A caveat is, however, entered that in the guise of such applications, the parties cannot be permitted to indulge in filing frivolous and vexatious petitions even where the need for filing subsequent pleadings does not exist. It is eventually for the Courts to make a delicate balance between the expediency of permitting subsequent pleadings and discouraging the frivolous and merit less applications. Having regard to the reasons for which the petitioner intended to file rejoinder, I am of the opinion that the lower Court ought to have granted leave. The petitioner has clearly mentioned in his affidavit that the fact of filing O.S.No.89 of 2008 by third parties against the respondents, which came to his knowledge subsequently, is a relevant aspect. He also sought to explain the effect of recitals of the two documents on which reliance was placed in the written statement. In my opinion, these reasons fall within the parameters laid down by the Courts for granting leave to file subsequent pleadings by way of rejoinder. Moreover, the respondents have not pleaded any prejudice on account of granting of leave to the petitioners to file rejoinder. On the above analysis, the order under revision is set aside and I.A.No.835 of 2008 is allowed. The civil revision petition is accordingly allowed. As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.7108 of 2011 shall stand disposed of as infructuous.