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Rajasthan High Court · body

2016 DIGILAW 324 (RAJ)

Legal Representatives of Hanuman v. Seema

2016-02-25

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. The matter comes up on an application preferred on behalf of the respondents for preponement of date of hearing. The application is not opposed by the counsel appearing for the petitioner. Accordingly, the application is allowed. With the consent of learned counsels for the parties, the matter is finally heard at this stage. 2. By way of this writ petition, the petitioner has questioned legality of order dated 27.5.14 passed by the Additional District Judge, Barmer in Civil Suit No. 440/10, whereby an application preferred by the petitioner under Order 8, Rule 9 CPC, seeking leave to file rejoinder to the written statement filed on behalf of defendants, the respondent no. 1 & 2 herein, has been rejected. 3. Learned counsel appearing for the petitioner contended that in the written statement filed, the defendants have taken the stand that the agreement to sell in question is forged and concocted document, which has been prepared by Jagdish Prasad Meena by committing fraud. Learned counsel submitted that the plaintiff has taken the objection regarding the outstanding amount shown by the plaintiff as Rs.4,83,300/- inasmuch as, as per the agreement to sell entered into between the parties, after deducting the amount of Rs.1,25,000/- paid in cash, the outstanding amount comes to Rs.5,08,300/-. Learned counsel submitted that the stand taken by the defendants in the written statement as aforesaid regarding the agreement to sell being a forged document as also the averments made regarding the error crept in calculating the outstanding amount needs to be controverted/clarified by way of rejoinder and thus, the court below has committed an error in not permitting the petitioner to file rejoinder as prayed for. 4. On the other hand, counsel for the respondents submitted that the respondents have no objection, if the prayer of the petitioner for filing the rejoinder in respect of the averments made in the written statement referred to by the petitioner as aforesaid, is permitted by this court. 5. I have considered the rival submissions and perused the material on record. 6. 5. I have considered the rival submissions and perused the material on record. 6. As per Order 8, Rule 9, in ordinary course the pleading except in case of plea of set off or counter claim ends with the defendant filing the written statement and therefore, the plaintiff cannot claim filing of rejoinder to the written statement as a matter of right and he has to provide cogent reasons for permission to file rejoinder. Indisputably, in terms of provisions of Order 8, Rule 9, the discretion is vested with the court to grant or not to grant leave to file pleadings subsequent to the filing of the written statement on behalf of the defendant but then, the discretion vested with the court has to be exercised judicially. 7. It is to be noticed that in the instant case, the defendants have came out with the plea that the agreement to sell is concocted and forged document and the same has been prepared by the Jagdish Prasad Meena by committing fraud. In the considered opinion of this court, the petitioner deserves to be permitted to file rejoinder in respect of the specific stand taken by the petitioner as aforesaid and therefore, the court below has erred in refusing to grant permission to the plaintiff to file rejoinder to the averments made by the defendants the written statement as aforesaid. Further, the plaintiff also deserves to be permitted to offer the clarification regarding the calculation error if any regarding the unpaid amount of sale consideration in terms of the agreement. 8. In view of the discussion above, the petition is allowed. The order impugned dated 27.5.14 passed by the Additional District Judge, Barmer in Civil Suit No.440/10, is set aside. The application preferred by the petitioner seeking permission to file rejoinder is allowed to the extent indicated above. No order as to costs.