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2015 DIGILAW 163 (AP)

Nannapaneni Sowbhagyamma v. Nannapaneni Rama Rao

2015-03-13

B.SIVA SANKARA RAO

body2015
ORDER Dr. B. Siva Sankara Rao, J. 1. The defendants 1 and 2 in OS No. 4 of 2014 on the file of the learned VII Additional District Judge, at Bodhan, no other than the respondents in IA No. 254 of 2014 which is an application filed by the plaintiffs 1 and 2 seeking the Court leave to file a rejoinder under Order VIII Rule 9 of C.P.C., to the written statement filed by the defendants, since allowed by the trial Court, by impugning the order dated 30.12.2014 preferred the revision with contentions in the grounds of revision that the application under Order VIII Rule 9 of C.P.C., is not maintainable, that the trial Court erred in not examining the entire case and in ignorance of the important legal aspects with reference to Order VI Rule 17 of C.P.C. only by way of amending the pleadings they have to file but not as a rejoinder and invoked Order VIII Rule 9 C.P.C. and thereby sought for setting aside the order permitting rejoinder to the plaint against the written statement of defendants. In the course of hearing before admission, the learned Counsel for the petitioners-defendants drawn attention of the Court to the two expressions, one of them is of High Court of Delhi in Anant Construction Private Limited v. Ram Niwas, 1994 Law Suit (Del.) Page 662 and the other is of High Court of Rajasthan in Gurjant Singh v. Krishan Chander, WLC-2000-4-266/WLN-2000-2-570/TLRAJ-2000-0-3490. Heard. Perused the material on record. The parties hereinafter are referred to as they were arrayed before the trial Court. 2. Now the points that arise for consideration are that: (1) Whether the order dated 30.12.2014 passed in IA No. 254 of 2014 in OS No. 4 of 2014 on the file of the learned VII Additional District Judge, Bodhan impugned herein is unsustainable and requires interference by this Court while sitting in revision and with what observations? (2) To what relief? Point No. 1: 3. The suit was filed by the two plaintiffs claiming that the husband of the 1st defendant executed a Will bequeathing his properties shown in the plaint schedule in favour of the plaintiffs and thereby to declare that they are the absolute owners and title holders pursuant to the bequeaths in the will dated 4.4.2011. Point No. 1: 3. The suit was filed by the two plaintiffs claiming that the husband of the 1st defendant executed a Will bequeathing his properties shown in the plaint schedule in favour of the plaintiffs and thereby to declare that they are the absolute owners and title holders pursuant to the bequeaths in the will dated 4.4.2011. The defendants disputed the plaintiffs' suit claim as well as the alleged will said to have been executed by the husband of the 1st defendant. It is their further contest that the 2nd defendant is the adopted daughter of the 1st defendant and late Seetharamaiah, that said Seetharamaiah is not the owner of the property as on the date of the alleged Will as he already gifted the property in favour of the 1st defendant and 1st defendant, in turn, gifted the property in favour of the 2nd defendant and thereby the plaintiff is not entitled to the relief of declaration or consequential reliefs. The plaintiff there from sought to file rejoinder disputing the alleged adoption as well as the alleged gift deeds said to have been executed by the deceased husband of the 1st defendant in favour of the 1st defendant and the subsequent alleged gift by the 1st defendant in favour of 2nd defendant The defendants went unsuccessful before the trial Court in opposing the rejoinder since received by the trial Court having granted the leave. Impugning the same, subject-matter of the revision came for admission. 4. Order VIII Rule 9 of C.P.C., permits the defendant to file subsequent pleadings after getting leave of the Court. For better appreciation, Order 8 Rule 9 of C.P.C., is extracted below: "9. Subsequent pleadings:-- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claims 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 of not more than thirty days for presenting the same." 5. The very reading of Order VIII Rule 9 of C.P.C. amended by the Act 2002 dated 1.7.2002 shows that it runs in two parts. The very reading of Order VIII Rule 9 of C.P.C. amended by the Act 2002 dated 1.7.2002 shows that it runs in two parts. The first part says for filing any subsequent pleading other than either by set off or counter-claim subsequent to the written statement of the defendant is only with leave of the Court; and the second part says the Court may at any time require written statement or additional written statement from any of the parties and fix a time of not more than 30 days for presenting the same. So far as any new ground of defence arisen pending suit, can be raised by the defendant or plaintiff on presentation of written statement claiming set-off or counter-claim is covered by Order VIII Rule 8 of C.P.C. So far as the amendment of pleading in general concerned, it is under Order VI Rule 17 C.P.C. It is to say the scope of Order VIII Rule 9 is different from the scope of Order VI Rule 17 of C.P.C. For better appreciation of the scope of Order VI Rule 17 of C.P.C., as per amended Act of 2002, w.e.f. 1.7.2002 the same reproduced is as under: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 6. The amended Act of 2002 w.e.f. 1.7.2002 is well considered, so also the scope 2015 (4) FR - F-31 of revision under Article227 of the Constitution of India in the expression of this Court that is brought to the notice vide P. Durga Prasad v. B. Yadi Reddy, CRP No. 1811 of 2014, dated 24.12.2014 reported in 2015 (1) LS 201. 7. 7. From the above, the rider to permit amendment of pleading under Order VI Rule 17 has no application so far as the subsequent pleading provided by Order VIII Rule 9 of C.P.C. from its wording "the Court may at any time require any additional pleading to permit" and any additional pleading of a party after written statement of defendant is only with leave of the Court. No doubt, amendment can be either to the plaint or written statement which are part of the pleadings. The amendment is different from additional pleading. It is needless to say an amendment can be sought even by introduction of additional pleading but, amendment is not confined to additional pleading alone for the reason that the amendment may be by deletion of some portion in the pleading for substitution of any new pleading by deletion of the existing or by addition as the case may be. There is nothing to say from Order VI Rule 17 C.P.C., that it is subject to or notwithstanding what is contained in Order VIII Rule 9 of C.P.C., which is the subsequent provision to Order VI Rule 17 C.P.C., in the same Code in arrangement of the orders. It is needless to say even if there is any inconsistency or irreconcilability between both the provisions, for none of which are running with the words subject to or notwithstanding; the Order VIII Rule 9 insofar as the area of inconsistency will definitely prevail-vide Dharangadhara Chemical Works v. Dharangadhara Municipality, (1985) 4 SCC 92 : AIR 1985 SC 1729 (A), (case-1), at Para 9 of the expression, it was held that if there is a repugnancy between the two pieces of a legislation dealing with the same subject-matter, to such an extent that both cannot stand together and operate simultaneously, the later will have the effect of impliedly repealing the former. Here that difficulty also does not arise as the additional pleading, the plaintiffs want to file is only as a rejoinder to the written statement to answer the same and not by amendment of the plaint much less to the prejudice of defendants. Here that difficulty also does not arise as the additional pleading, the plaintiffs want to file is only as a rejoinder to the written statement to answer the same and not by amendment of the plaint much less to the prejudice of defendants. If it is an amendment of the plaint, it is within the scope of Order VI Rule 17; if it is rejoinder which is as a counter to the pleading raised in the written statement of the defendants, it is nothing but in the form of a written statement to answer the positive and independent claim made by the defendants in their written statement. This Court in Malgireddy Venkata Ramana v. Thippana Narsi Reddy, 2010 (3) ALD 82 : AIR 2010 AP 114 , also held that the rejoinder of the plaintiff can be permitted under Order VIE Rule 9 C.P.C., to explain the additional facts raised in the written statement of defendant. It is needless to say even mere quoting of an incorrect provision is not fatal. 8. Even coming to the expression in Anant Construction's case (supra) also at Para 19, it is categorically held that, the difference between a plea requiring amendment of plaint and a plea sought to be introduced by replication have to be kept in mind in drawing the line between on the scope of the two provisions. Even in Gurjant Singh's case (supra), it was held that a rejoinder can be filed after written statement of defendants to said pleading, by plaintiff under Order VIII Rule 9 of C.P.C., though not as a matter of course, but by showing that it has arisen as a subsequent pleading to the written statement and that only with leave of the Court. What was held further in the expression is under the guise of rejoinder, one cannot be permitted to take an inconsistent plea to the original pleading. Even the earlier expression of Rajasthan High Court in Ajanta Enterprises v. Bijmla Charan Chatterjee, 1987 (1) Raj. L.R. 991, rejoinder of plaintiff to the written statement of defendant, under Order VIII Rule 9 is maintainable. 9. Even the earlier expression of Rajasthan High Court in Ajanta Enterprises v. Bijmla Charan Chatterjee, 1987 (1) Raj. L.R. 991, rejoinder of plaintiff to the written statement of defendant, under Order VIII Rule 9 is maintainable. 9. Having regard to the above, it is squarely based in the scope of Order VIII Rule 9 of C.P.C. and as such a rejoinder is necessary for the plaintiff to deny the independent pleading raised by the defendants in their written statement which is not simply an answer to the plaint claim and, that too, when the Order VIII Rule 9 C.P.C., permits with leave of the Court to file rejoinder and when the trial Court by duly exercised its discretion, there is nothing to interfere. Needless to say a pleading does not tantamounts to proof, but for part of rival contentions. It is thus to be proved or disproved by evidence in support of or otherwise of the claims, if any, with pleadings for deciding the lis on hand within its scope after full dressed trial on merits. Thus, for this Court while sitting in revision when there is nothing shown of illegality or irregularity much less such irregularity or irregularity caused prejudice to the right of defendants-revision petitioners, to entertain the revision by admission within the scope of Article 227 of the Constitution of India. Accordingly, the Point 1 is answered. Point No. 2: In the result, the revision petition is disposed of at the admission stage with observation that this disposal of revision at admission no way prejudice the right of the defendants much less give any right to the plaintiffs by receiving the pleadings but for to formulate necessary issues including with reference to the rejoinder, if already issues were settled as additional issue or altering existing issue to the extent necessary as per Order XIV C.P.C., for conducting trial. Consequently, miscellaneous petitions, if any, pending in this revision shall stand closed.