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2017 DIGILAW 1069 (JK)

Inhabitants Of Village Sangwali v. Krishan Singh

2017-12-18

ALOK ARADHE

body2017
JUDGMENT : Alok Aradhe, J. Petition is admitted for hearing. With consent of the learned counsel for the parties, the matter is heard finally. 2. In this petition under Section 104 of the Constitution of State of Jammu and Kashmir, the petitioners inter alia seek quashment of the order dated 18.02.2017 passed by the trial court by which application preferred by the petitioners under Order 8, Rule 9 has been dismissed. 3. Facts giving rise to the filing of this writ petition briefly stated are that petitioners have filed a suit seeking the relief of mandatory injunction as well as injunction restraining the respondents from causing any obstruction in free use and occupation of the plaintiffs over the land which forms subject matter of the suit and not to raise construction thereon. The respondents filed the written statement. Thereafter, the petitioners filed an application under Order 8, Rule 9 of the CPC. The aforesaid application has been rejected by the Trial Court inter alia on the ground that the provisions of Order 8, Rule 9 of the CPC are not attracted to the fact situation of the case, as the respondents have neither filed a set-off nor counter claim. 4. Learned counsel for the petitioners submitted that the Trial Court has misconstrued the provisions of Order 8, Rule 9 of the CPC. 5. On the other hand, learned counsel for the respondents has supported the order passed by the Trial Court. 6. I have considered the submissions made by learned counsel for the parties and have perused the record. Order 8, Rule 9 of the CPC reads as under: "No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off 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 time require a written statement or additional written statement from any of the parties and fix a time for presenting the same." 7. From close scrutiny of Order 8, Rule 9 of the CPC, it is evident that the aforesaid provision not only permits filing of subsequent pleadings, as a matter of right, in cases where the defendant sets up a counter claim or pleads set off in written statement but also in other cases with the leave of the Court. From close scrutiny of Order 8, Rule 9 of the CPC, it is evident that the aforesaid provision not only permits filing of subsequent pleadings, as a matter of right, in cases where the defendant sets up a counter claim or pleads set off in written statement but also in other cases with the leave of the Court. Thus, under Order 8, Rule 9 of the CPC, a plaintiff can file a rejoinder with the leave of the Court even in cases where the defendant has not pleaded set-off or a counter-claim. In this connection, reference may be made to the decision of this Court in the case of Bakshi Anwar Aftab and Ors. vs. Yousuf Mohd. Maqbool and Ors, 1998 Legal Eagle (J&K) 103 and decision of Andhra Pradesh High Court in the case of Punuru Vijaya Lakshmi vs. Punuru Venkata Reddy, (2000) 0 Supreme (AP) 451. However, the Trial Court has misconstrued the provisions of Order 8, Rule 9 of the CPC. The impugned order, therefore, suffers from the jurisdictional infirmity as well as error apparent on the face of the record which cannot be sustained in the eye of law. It is, accordingly, quashed. 8. The trial Court is directed to decide the application preferred by the petitioners afresh by a speaking order within a period of one month in the light of the preceding analysis. Accordingly, the petition is disposed of, along with connected MP.