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2017 DIGILAW 1086 (RAJ)

Mota Ram S/o Teja Ram v. Naina Ram

2017-04-26

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. 1. The case has come up for consideration of an application seeking vacation of interim order dated 24.02.2015 passed by this Court in the present writ petition, wherein the petitioner has challenged the order dated 05.01.2015, vide which the learned Trial Court has permitted the rejoinder/reapplication filed by the plaintiff to be taken on record. 2. Succinctly stated the facts of the case are that the plaintiff filed a suit for permanent injunction and seeking possession against the defendant-petitioner. Pursuant to the suit filed by the plaintiff, the petitioner filed written statement, contending in Para No.5 & 11 thereof, that the land in question had been sold orally by the plaintiff to the defendant No.2 about 20 years ago. It would be worthwhile to reproduce Paras No.5 & 11 of the written statement, which is as under:- 5- ;g fd okni= dk fQdjk la[;k 5 ds rF; xyr gksus ls vLohdkj gS rFkk tokc gS fd oknh us fookfnr vkjkth dks izfroknh la[;k 2 dks 20 Ok"kksZa iwoZ ekSf[kd cspku dj dCtk djok fn;k Fkk rFkk rHkh ls edkukr cukdj izfroknh fookfnr vkjkth ij dkfct gSA fiNys yEcs le; ls izfroknhx.k oknh dks viuh ekSf[kd cspkulqnk Hkwfe dh jftLV~h djokus gsrq fuosnu dj jgk gS ijUrq oknh izfroknhx.k ls vuwfpr jde dh ekax djrk jgk] ftlus izfroknh ij ncko cukdj jde ,aBus dh uh;r ls >wBs QkStnkjh eqdnesa Hkh fd;s tks vUos"k.k esa >wBs ik;s tkus ij ,Q0vkj0 is'k dh xbZ rFkk oknh vius cStk bjkns esa lQy ugha gks ikus ls izfroknhx.k dks rxa o ijs'kku djus dh uh;r ls rFkk vnkyr dk dherh le; cjckn djus dh uh;r ls ;g okn is'k fd;k gSA 11- ;g fd okni= dk fQdjk la[;k 11@1] 2] 3 xSj dkuwuh] xSj okftc ,oa xyr gksus ls oknh dk okn e; gtsZ [kpsZ ds [kkfjt Qjekos rFkk fQdjk la[;k 11@4 ds tokc esa izfroknhx.k dks oknh ls cStk okn is'k djus rFkk izfroknhx.k dks vkfFkZd o ekufld osnuk dh {kfriwfrZ gsrq 50]000@& :i;s izfroknhx.k ls oknh dks fnyk;s tkosA 3. Faced with such written statement, the plaintiff filed an application dated 08.02.2012 under Order 8, Rule 9 of the Code of Civil Procedure, 1908 and sought leave to place reapplication on record. The said reapplication came to be allowed by the learned Court below vide its order impugned. Faced with such written statement, the plaintiff filed an application dated 08.02.2012 under Order 8, Rule 9 of the Code of Civil Procedure, 1908 and sought leave to place reapplication on record. The said reapplication came to be allowed by the learned Court below vide its order impugned. While allowing the reapplication vide order dated 05.01.2015, the learned Court below has simply observed that certain new facts have been stated by the plaintiff in his written statement, to which filing of rejoinder is necessary. 4. Mr. T.R. Choudhary learned counsel for the petitioner assailing the order impugned, submitted that the Trial Court has allowed the application under Order 8, Rule 9 of the Code and permitted filing of the rejoinder, without proper application of mind. In this regard, he pointed out averments made in Para No.11 and submitted that such pleadings are beyond the scope of the suit and if the same is permitted to remain on record, it will change the nature of the suit itself. It will be apt to reproduce the relevant and oppugned portion of the rejoinder, contained in Para 11 thereof: Þ----izfroknhx.k ds mDr vfHkopu ds foijhr oknh izfroknhx.k ls lnks"k vfHkykHk ikus dk gdnkj gSA izR;sd dejksa dks fdjk;k izfrekg 3000 x 2 ¾ 6000@& v{kjs Ng gtkj :i;s gksrk gSA vc rd dk fdjk;k 15 ekg x 6000@& vFkkZr 90]000@& v{kjs uCcs gtkj :i;s fdjk;k gks pqdk gSA okni= fopkfjr jgus ds nkSjku vkxs ls vkxs lnks"k vfHkykHk dh jkf'k c<+rh tk;sxh] tks oknh izfroknhx.k ls izkIr djus dk gdnkj gSA ekfQd bLrnqvk okni= oknh fMdzh cgd oknh cjf[kykQ izfroknhx.k ds izkIr djus dj gdnkj gSAÞ 5. Mr. Rakesh Matoria, learned counsel for the respondents submitted that the Trial Court has permitted the rejoinder to be taken on record after appreciating the factual backdrop of the case. He submitted that once the Court below has permitted rejoinder to be taken on record, this Court in exercise of its supervisory jurisdiction, should not interfere in such orders. For this purpose, he relied upon a judgment passed by this Court in the matter of Saitana Ram v. Ugra Ram & Ors. being S.B. Civil Writ Petition No.7336/2012 decided on 18.01.2017. 6. I have heard learned counsel for the parties and perused the record. For this purpose, he relied upon a judgment passed by this Court in the matter of Saitana Ram v. Ugra Ram & Ors. being S.B. Civil Writ Petition No.7336/2012 decided on 18.01.2017. 6. I have heard learned counsel for the parties and perused the record. A perusal of the objected part of Para No.11 of the rejoinder quoted above, leaves no room for ambiguity that the same are absolutely irrelevant and have no connection whatsoever with the case of the parties. If the contentious portion of the rejoinder is permitted to be kept on record, it would result in absurdity much less incongruity. The contents of the Para No.11 of the rejoinder, vide which the plaintiff has claimed mesne profit for 15 months is absolutely out of context. Mr. Matoria, learned counsel for the respondents has failed to show its relevance, with the case and issue involved in the present case. 7. The judgment dated 18.01.2017 in the case of Saitana Ram (Supra) relied upon by Mr. Matoria is of little avail to him. There is a stark difference in the facts of Saitana Ram's case; wherein this Court had been pleased to allow the application seeking to place rejoinder on record and on the analysis of the facts of the case the Court had found the rejoinder to be necessary. Whereas in the present case the Trial Court has already allowed the application, which order is under challenge. 8. Needless to observe that the said judgment dated 18.01.2013 does not rule that the Court should not interfere in an order allowing the application under Order 8, Rule 9 , as claimed by Mr. Matoria. 9. In view of the above, the writ petition filed by the petitioner is allowed. Contents of Para No.11 of the rejoinder, reproduced above is deleted from the rejoinder. The rest of the rejoinder shall however, remain intact. Respondents-plaintiff to file amended rejoinder before the Court below, within a period of one month from today. 10. Writ petition stands allowed as indicated above.