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2015 DIGILAW 1807 (RAJ)

Raj Kumar v. Shri Jos Methis

2015-10-26

P.K.LOHRA

body2015
JUDGMENT 1. - Petitioner-plaintiff has laid this petition under Article 227 of the Constitution of India to challenge the impugned order dated 04.09.2015 (Annex.6) passed by the learned District Judge, Udaipur (for short 'the learned court below') whereby learned court below has rejected the application of the petitioner-plaintiff under Order 8, Rule 9 and under Order 6, Rule 17 CPC for amending the said application. 2. There is a checkered history of the case but for convenience the facts in brevity are that petitioner-plaintiff filed a suit for specific performance of contract against the first respondent and further a relief was craved for possession of the property. Yet another prayer was made seeking direction against all the respondents to execute registered instrument of sale in his favour for the consideration amount of Rs. 7,25,000/- which was mentioned in the agreement to sale. The learned court below issued summons to the respondents-defendants and none appeared for the respondents. Therefore, ex parte proceedings were taken against them and finally ex parte decree was passed by the learned court below on 22.11.1994. Against the ex parte judgment and decree of the learned court below, the respondent Nos.2 & 3 laid application under Order 9, Rule 13 CPC for setting aside ex parte decree but the said effort of the respondents proved abortive and the learned court below rejected their application by order dated 11.02.2009. Being aggrieved of the said order, the respondent Nos.2 & 3 filed two separate miscellaneous appeals before this Court which were registered as CMA No.684/2009 & 762/2010 respectively. The appeals were finally heard by learned Single Judge on 13.07.2015 and both appeals were allowed whereby the impugned order dated 11.02.2009 rejecting the application for setting aside ex parte decree was set aside and the matter was remanded back to the learned court below for deciding it afresh within six months. After remand, separate written statements were filed by both the respondent Nos.2 and 3. However, the first respondent has not participated in the proceedings. After submission of written statement of both the respondents, the petitioner made endeavour to file subsequent pleading with respect to both the written statements and an application under Order 8, Rule 9 read with Section 151 CPC in this behalf was laid before the court below. Along with application, under Order 8, Rule 9 CPC proposed rejoinder is also enclosed. After submission of written statement of both the respondents, the petitioner made endeavour to file subsequent pleading with respect to both the written statements and an application under Order 8, Rule 9 read with Section 151 CPC in this behalf was laid before the court below. Along with application, under Order 8, Rule 9 CPC proposed rejoinder is also enclosed. It appears that there was some amendment to be made in the application under Order 8, Rule 9 CPC and, therefore, the petitioner made endeavour to make necessary amendment in the application and that being so the application under Order 6, Rule 17 is submitted. The learned court below after hearing the rival submissions by the impugned order rejected both the applications. 3. I have heard learned counsel for the parties, perused the impugned order and the other materials available on record. 4. Order 8, Rule 9 CPC envisages the provision for subsequent pleadings which in common parlance is called rejoinder. It starts with a non-obstante clause with a stipulation that no pleadings subsequent to written statement of defendant shall be presented except by the leave of the court and upon such terms as the court thinks fit, but for by way of defence to set off or counter claim. Meaning thereby, in case of defence to set off or counter claim, a plaintiff can file subsequent pleadings as a matter of right. However, in other cases, if the plaintiff is desirous to file subsequent pleadings he is required to obtain leave of the Court and the Court may grant such leave with certain terms and conditions as it deems fit. Therefore, intent of the legislature is clear that in normal circumstances, pleadings other than defence too set off or counter claim, can be filed by the plaintiff after craving leave of the court and in terms of the leave granted by the court. Now, in that background, if the application submitted by the petitioner is examined threadbare, then it would ipso facto reveal that application is absolutely vague, cryptic and unspecific. There is no averment in the application as to why the petitioner is seeking leave of the court for filing rejoinder. Moreover, which part of the written statement, according to the plaintiff requires subsequent pleadings is also not borne out from the averments in the application. There is no averment in the application as to why the petitioner is seeking leave of the court for filing rejoinder. Moreover, which part of the written statement, according to the plaintiff requires subsequent pleadings is also not borne out from the averments in the application. In general, it is stated in the application that the respondents in their written statements have pleaded certain irrelevant and baseless facts which are required to be rebutted or explained by the petitioner-plaintiff. Surprisingly, even the paragraph of written statement for which the petitioner wants to file subsequent pleadings is not pointed out in the application. Be that as it may, the learned court below examined the application of the petitioner as well as averments of the proposed rejoinder and noticed that some of the facts which are incorporated in the rejoinder are already pleaded in the plaint of the petitioner and as such the same would amount to reiterating the facts already pleaded. Apart from that some of the facts sought to be pleaded in the rejoinder also did not find favour from the learned court below precisely for the reason that these facts were within the knowledge of the petitioner at the time of launching of the suit and, therefore, he cannot be permitted to fill up the lacunae which has crept in the plaint in the guise of rejoinder. One more reason which has persuaded the learned court below to decline the prayer of the petitioner is that there is no new facts averred in the written statement requiring denial or explanation by the petitioner in the form of subsequent pleadings. While incorporating all these reasons, the learned court below rejected the prayer of the petitioner. As observed herein above, rejoinder cannot be filed by the plaintiff as a matter of right and leave can be granted by the court on satisfaction of certain conditions namely, if some new facts are pleaded in the written statement or some subsequent events which are highlighted in the written statement and not within the knowledge of the plaintiff at the time of filing of suit. 5. In Nisra Mohd. v. Dinesh Singh Meena, 2013 (4) DNJ (Raj.) 1466 , this Court has declined to interfere with the discretionary order of the Tribunal rejecting the application under Order 8, Rule 9 CPC in absence of new facts in the written statement. 6. 5. In Nisra Mohd. v. Dinesh Singh Meena, 2013 (4) DNJ (Raj.) 1466 , this Court has declined to interfere with the discretionary order of the Tribunal rejecting the application under Order 8, Rule 9 CPC in absence of new facts in the written statement. 6. In State of Rajasthan & Anr. v. Mohammed Ikbal & Ors., 1998 DNJ (Raj.) 275 , this Court has declined to permit inconsistent pleas which are at variance with the plea originally taken in the suit by way of rejoinder. Some of the principles are also deduced by the Court in paragraph-9 of the verdict as under:- "9. The principles deducible from the above discussions may be summarised thus:- a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint. b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement. c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder. d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action. e) Application under Order 8, Rule 9 CPC, cannot be treated as one under Order 6, Rule 17 CPC, as both are contextually different." 7. In the considered opinion of this Court, the proposed rejoinder filed by the petitioner is not satisfying the principles summarised supra and as such the discretionary order of the learned court below is not liable to be interfered with. There remains no quarrel that a plaintiff cannot be permitted to set up a new case in the rejoinder nor inconsistent pleas can be raised in the rejoinder. 8. As noticed supra, there is a basic snag in the application under Order 8, Rule 9 CPC which is bereft of material particulars about the subsequent pleadings which are necessary coupled with the fact that petitioner has made an attempt to incorporate certain facts which were within his knowledge even at the time of filing of the suit, the learned court below has rightly declined the prayer of the petitioner to file subsequent pleadings. The impugned order as such is a discretionary order and the same cannot be made subject matter of judicial review in exercise of jurisdiction under Article 227 of the Constitution of India. 9. The impugned order as such is a discretionary order and the same cannot be made subject matter of judicial review in exercise of jurisdiction under Article 227 of the Constitution of India. 9. Therefore, viewed from any angle, I am not inclined to interfere with the impugned order and consequently the petition fails and the same is hereby dismissed.Petition Dismissed. *******