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2021 DIGILAW 205 (TS)

Hafiz Mufti Mohammed Zahid Nasri v. Mohammed Iqballuddin Ahmed

2021-06-30

M.S.RAMACHANDRA RAO

body2021
ORDER : (M.S. Ramachandra Rao, J.) Since both these Revisions arise out of the same suit between the same parties, they are being disposed of by this Common Order. 2. The petitioner in both these Revisions is plaintiff in O.S.No.6 of 2019 on the file of the Telangana State Wakf Tribunal, at Hyderabad. The plea of petitioner/ plaintiff in O.S.No.6 of 2019 3. He had filed the said suit against respondents for a perpetual injunction restraining respondent nos.1 and 2 from removing or interfering with plaintiff in performance and discharge of functions and duties of Imam-Khateeb of Masjid-e-Zorawar Khan situate at Hanuman Tekdi, Abids, Hyderabad. 4. The respondent nos.1 and 2 filed a Written Statement. I.A.No.20 of 2019 5. The petitioner had also filed I.A.No.20 of 2019 in the said suit under Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908 for an ad interim injunction restraining respondents from removing or interfering with petitioner in performance of functions and duties of Imam-Khateeb of Masjid-e-Zorawar Khan. 6. Even to this application, counter-affidavits were filed by respondent nos.1 and 2. I.A.Nos.5 and 6 of 2021 7. The petitioner then filed Interlocutory Application No.5 of 2021 under Order VIII Rule 9 of Civil Procedure Code, 1908 for grant of relief to permit him to file a rejoinder to the Written Statement filed by respondent nos.1 and 2 and another Interlocutory Application No.6 of 2021 also invoking Order VIII Rule 9 of Civil Procedure Code, 1908 to permit him to file a reply-affidavit to the counter-affidavit filed by respondent nos.1 and 2 in Interlocutory Application No.20 of 2019. 8. It is the contention of petitioner in Interlocutory Application Nos.5 and 6 of 2021 that in the Written Statement and Counter-affidavit filed by the respondents in the suit and in Interlocutory Application No.20 of 2019, they misrepresented certain facts and it is necessary for him to file a rejoinder to the Written Statement and Reply to the said counter-affidavit in order to bring true facts to the notice of the Court. 9. No counter-affidavit was filed by respondent nos.1 and 2 opposing this application. Order dt.12.1.2021 in IA.No.5 and 6 of 2021 10. By separate orders dt.12.01.2021, the Court below dismissed both Interlocutory Application Nos.5 and 6 of 2021. 11. 9. No counter-affidavit was filed by respondent nos.1 and 2 opposing this application. Order dt.12.1.2021 in IA.No.5 and 6 of 2021 10. By separate orders dt.12.01.2021, the Court below dismissed both Interlocutory Application Nos.5 and 6 of 2021. 11. The Court below observed in the impugned orders that the ground raised by the petitioner about misrepresentation of facts by respondent nos.1 and 2 is not a sufficient ground to permit petitioner to file a reply-affidavit. It then quoted that Order VIII Rule 9 of Civil Procedure Code, 1908 and observed that only in case of a set off or counter-claim, a party is entitled to file a rejoinder or reply-affidavit, and that it is necessary for petitioner to satisfy the Tribunal that there are sufficient grounds permitting him to file the same. It further observed that relief claimed in the suit and in Interlocutory Application No.20 of 2019 is for perpetual injunction and temporary injunction respectively, and the proposed reply-affidavit or rejoinder would not help shorten the litigation, and is not required to be filed in order to do complete justice between the parties. It distinguished the decision cited by petitioner reported in Aloor Subrahmanyam vs. Suthram Prabhakar and others, 2012 (3) A.L.D. 202 which had taken view that ordinarily subsequent pleadings can be permitted, but refused to apply it to the instant case on the ground that under the guise of such petitions, parties cannot be permitted to indulge in filing of frivolous and vexatious petitions. Contentions of counsel for petitioners 12. The counsel for petitioner contended that the view taken by the Court below is erroneous; and that the Court below misconstrued Order VIII Rule 9, and wrongly held that unless there is a set off or counter-claim, a reply-affidavit to a counter-affidavit or a rejoinder to a written statement cannot be filed. He also contended that the Court below erred in holding that because it is a suit for perpetual injunction there are no sufficient grounds to permit the petitioner to file a rejoinder or a reply-affidavit. Contentions of counsel for respondents 1 and 2 13. He also contended that the Court below erred in holding that because it is a suit for perpetual injunction there are no sufficient grounds to permit the petitioner to file a rejoinder or a reply-affidavit. Contentions of counsel for respondents 1 and 2 13. The counsel for respondent nos.1 and 2 however supported the orders passed by the Court below and contended that there is no misrepresentation of facts by respondent nos.1 and 2, and there was no necessity to permit petitioner to file rejoinder to the written statement and reply-affidavit to the counter filed in Interlocutory Application No.20 of 2019. The consideration by the Court 14. Order VIII Rule 9 states 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 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.” 15. A reading of the above provision indicates that a pleading subsequent to the written statement of a defendant, other than by way of defence to a set off or counter-claim, cannot be permitted, except by leave of Court. In other words, if an application to grant relief to file subsequent pleadings is filed even though it is not by way of a defence the set-off or counter-claim, if the Court permits and grants such leave, such subsequent pleadings can be filed. 16. So the view taken by the court below that only if there is a set off or counter claim, rejoinder can be permitted to be filed is incorrect. 17. In Aloor Subrahmanyam (1 supra), this provision was interpreted by a learned single Judge of the Andhra Pradesh High Court stating that Order VIII Rule 9 of Civil Procedure Code, 1908 per se does not stipulate any limitations on the power of the Court to allow parties to file subsequent pleadings, but Courts have interpreted by reading certain limitations into it, to ensure that the scope of the proceedings is not unduly enlarged and the said proceedings are not dragged on in the guise of filing subsequent pleadings. The learned Judge further went on to refer to the decision of the Supreme Court in Shikharchand Jain vs. Digamber Jain Praband Karini Sabha, (1974) 1 S.C.C. 675 = AIR 1974 SC 1178 and also another decision of this Court reported in Sardar Darshan Singh vs. Surjeeth Kaur, 2007 (3) ALT 193 and held that in following circumstances leave for filing subsequent pleadings can be granted, i.e., (i) the relief claimed originally by reason of subsequent change has become inappropriate; (ii) or whether it is necessary to take notice of changed circumstances in order to shorten the litigation; (iii) or to do complete justice between the parties; but the plaintiff cannot be permitted to raise inconsistent pleas or alter the cause of action. The learned Judge also referred to another decision in Malgireddy Venkata Ramana vs. Thippana Narsi Reddy, 2012 (3) A.L.T. 630 wherein it was held that a rejoinder can be filed to explain the contents of the Written Statement on material aspects, and that primary object of subsequent pleading is to supply what has been omitted inadvertently or unintentionally, or to deny or clarify the facts stated in the pleadings of the opposite party, and in a rejoinder, the plaintiff can be permitted to explain additional facts which have been incorporated in the Written Statement. The learned Judge in Aloor Subrahmanyam (1 supra) also cautioned that such leave should be refused if the intention of the party is to procrastinate the proceedings or to widen the scope of the suit or change the nature and character of the suit proceedings. He also held that by permitting such subsequent pleadings, Courts can avoid multiplicity of proceedings since Courts approach should be to comprehensively and effectually decide all questions arising in the case with reference to the complete information furnished by the parties through their original as well as subsequent pleadings. 18. It is the contention of petitioner in these Revisions that there were certain facts which were misrepresented by respondents in the Written Statement and Counter-affidavits filed by them in Interlocutory Application No.20 of 2019. 19. Obviously, petitioner’s intention is to clarify the facts stated in the pleadings of respondent nos.1 and 2 and he intends to explain the facts which have been incorporated in the Written Statement / Reply- Affidavit. 20. 19. Obviously, petitioner’s intention is to clarify the facts stated in the pleadings of respondent nos.1 and 2 and he intends to explain the facts which have been incorporated in the Written Statement / Reply- Affidavit. 20. Merely because the suit is one for perpetual injunction, no presumption can be drawn that the intention of petitioner in seeking to file additional pleadings by way of Rejoinder or reply-affidavit is only to drag on the proceedings. 21. In my opinion, permitting petitioner to file such additional pleadings by way of rejoinder or reply-affidavit would avoid multiplicity of proceedings and would enable the Court to comprehensively and effectually decide all questions arising in the case on the basis of the information furnished by the parties through their original as well as subsequent pleadings. 22. Therefore, I disagree with the view taken by the Court below that there are no sufficient grounds to permit petitioner to file a Rejoinder to the Written Statement filed by respondent nos.1 and 2 or a reply-affidavit to the counter-affidavit filed by respondent nos.1 and 2. 23. For the aforesaid reasons, the Civil Revision Petitions are allowed; the order dt.12.02.2021 passed in Interlocutory Application No.5 of 2021 in O.S.No.6 of 2019 and in Interlocutory Application No.6 of 2021 in O.S.No.6 of 2019 on the file of the Telangana State Wakf Tribunal, Hyderabad, are both set aside; and the said applications are allowed. No order as to costs. 24. As a sequel, miscellaneous applications, pending if any in these Revisions, shall stand closed.