JUDGMENT : The petitioner is the plaintiff, and the respondents are the defendants in O.S.No.37/2012 of the Court of the Subordinate Judge, Chengannur. The suit is for specific performance of an agreement to sell the plaint schedule properties. The petitioner’s case is that the respondents, instead of performing their part of the contract, filed O.S.No.308/2011 before the Court of the Munsiff, Chengannur, to restrain the petitioner from entering into the plaint schedule property. The petitioner had filed O.S.No.210/2012 before the same Court against the respondents to restrain them from alienating the property to others. A ‘status quo’ order was passed in that suit. Although the petitioner had expressed his readiness and willingness to perform his part of the contract, the respondents have wilfully refused to perform their part. Hence, the present suit. 2. The respondents have resisted the present suit by filing Ext.P2 written statement. 3. The court below had formulated six issues. 4. The parties went to trial. Witnesses were examined, and documents were marked on both sides. At the time of final hearing, the Court below formulated an additional issue as to whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (in short, “Code”). Thereafter, the Court below, by Ext.P3 judgment, dismissed the suit holding it to be hit by O.2 R.2 of the Code. 5. Aggrieved by Ext.P3 judgment, the petitioner filed R.F.A.No.21/2019 before this Court. This Court allowed the appeal and remanded the suit for fresh consideration by Ext.P4 judgment. 6. Then, the respondents filed Ext.P6 application, seeking leave to accept Ext.P5 additional written statement on record. Even though the petitioner objected to the application, the court below, by the impugned Ext.P8 order, allowed Ext.P6 application and accepted Ext.P5 additional written statement on record. Ext.P8 is erroneous and improper. Hence, the original petition. 7. Heard; Sri.P.B.Krishnan, the learned counsel appearing for the petitioner and Sri.Joseph P. Alex, the learned counsel appearing for the respondents. 8. Sri.P.B.Krishnan referred to O.6 R.7, O.6 R.17 and O.8 R.9 of the Code and assailed Ext.P8 order. He contended that no pleading subsequent to the written statement, other than by way of defence to set-off or counter-claim, can be accepted on record. The course open to a party is to amend the pleadings as provided under O.6 R.7 of the Code, subject to the proviso to R.17 of O.6 of the Code. He contended that no pleading subsequent to the written statement, other than by way of defence to set-off or counter-claim, can be accepted on record. The course open to a party is to amend the pleadings as provided under O.6 R.7 of the Code, subject to the proviso to R.17 of O.6 of the Code. But the Court below has erroneously granted leave and accepted the additional written statement. He placed reliance on the decisions of the Honourable Supreme Court in P.A.Jayalekshmi v. H.Saradha and others [2009 KHC 4489] and Gurdial Singh and others v. Raj Kumar Aneja and Others [ (2002) 2 SCC 445 ], the decision of this Court in Venugopal R.v. Meenakshi Gopinath [2009 KHC 1334] and the decision of the Karnataka High Court in Mohammadali and another v. Kakhuthejatul Kubra and others [ILR 2001 KAR 4580], to canvass the above position. He also placed emphasis on paragraphs 11, 36, 37, 40 and 42 of Ext.P4 inter-party judgment in R.F.A.No.21/2019 and argued that this Court had permitted the parties to let in additional evidence but not file subsequent pleadings. Hence, the court below ought to have rejected the additional written statement. He urged the impugned order to be set aside. 9. Sri.Joseph. P. Alex countered the above submission by contending that this Court, in paragraph 37 of the judgment in R.F.A.No.21/2019, has unambiguously held that it was not recording any finding on the question of the bar under O.2 Rule 2 of the Code and has permitted the parties to adduce additional evidence, which necessarily implies filing of subsequent pleadings. Based on the above observation, the respondent filed Exts.P5 and P6. Moreover, when filing the written statement, the fact regarding the abandonment of the earlier suit was not entirely within the respondents’ knowledge, though they have averred about it. It is the petitioner who, at the time of trial, produced the plaint and the judgment in O.S.No.308/2011. The respondents have only elaborated on what is stated in the written statement by filing the additional written statement. Furthermore, the plea of O.2 R.2 is a question of law, which the court below is bound to consider. He placed reliance on the decision of the Honourable Supreme Court in Ashok Kumar Kalra v. Wing CDR. The respondents have only elaborated on what is stated in the written statement by filing the additional written statement. Furthermore, the plea of O.2 R.2 is a question of law, which the court below is bound to consider. He placed reliance on the decision of the Honourable Supreme Court in Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri and others [ (2020) 2 SCC 394 ] and the decisions of this Court in Baby v. Sebastian [ 2007 (3) KLT 885 ] and Kochukesavan Nair v. Gouri Amma [ 1967 KLT 257 ] to justify the impugned order. He urged this Court not to interfere with the discretionary powers exercised by the court below. 10. The point is whether there is any illegality in Ext.P8 order. 11. The suit is filed for a decree of specific performance. The respondents have resisted the suit by filing Ext.P2 written statement. After the conclusion of the trial, the Court below, based on materials placed before it, formulated additional issue No.7 - whether the suit was hit by O.2 R.2 of the Code - in view of the previous litigation between the parties. By Ext.P3 judgment, the court below had dismissed the suit holding it to be hit by O.2 R.2 of the Code. But, by Ext.P4 judgment, this Court set aside the judgment and remanded the suit for fresh consideration. After that, the respondents filed Ext.P5 additional written statement with Ext.P6 application for leave to accept Ext.P5 on record, which was allowed by the Court below by Ext.P8 order. 12. Order 8 Rule 9 of the Code reads thus: “Subsequent pleadings.-No pleading subsequent to the written statement of a defendant other than by way of defence to 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 any time require a written statement or additional written statement from any of the parties cut and fix a time of not more than thirty days for presenting the same.” 13. In P.A.Jayalakshmi v. H.Saradha and others [2009 KHC 4489], the Hon'ble Supreme Court, interpreting Order VI Rule 17 and Order VIII Rule 9, held thus: “8. xxx xxx xxx Order 6 Rule 17 speaks of amendment of pleadings whereas Order 8 Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. In P.A.Jayalakshmi v. H.Saradha and others [2009 KHC 4489], the Hon'ble Supreme Court, interpreting Order VI Rule 17 and Order VIII Rule 9, held thus: “8. xxx xxx xxx Order 6 Rule 17 speaks of amendment of pleadings whereas Order 8 Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings. 14. Again, in Gurdial Singh and Others v. Raj Kumar Anej and others [ (2002) 2 SCC 445 ], the Hon'ble Supreme Court has observed thus: “13. Before parting we feel inclined to make certain observations about the loose practice prevent in subordinate Courts in entertaining and dealing with applications for amendment of pleadings. It is a disturbing feature and if such practice continues, it is likely to thwart the course of justice. The application moved by the occupants for amendment in their written statements filed earlier did not specifically set out which portions of the original pleadings were sought to be deleted and what were the averments which were sought to be added or substituted in the original pleadings. What the amendment applicants did was to give in their applications a vague idea of the nature of the intended amendment and then annex a new written statement with the application to be substituted in place of the original written statement. Such a course is strange and unknown to the procedure of amendment of pleadings. A pleading, once filed is a part of the record of the Court and cannot be touched modified, substituted, amended or withdrawn except by the leave of the Court. Order 8 Rule 9 of CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-out or counter-claim except by the leave of the Court and upon such terms as the Court thinks fit xxx xxxx”. 15. In Ashok Kumar Kalra v. Wing CDR.Surendra Agnihotri and others [ (2020) 2 SCC 394 ], Mohan M.Shantanagoudar, J.(as he then was), in his partly supplementing and partly dissenting judgment, observed as follows: “32. 15. In Ashok Kumar Kalra v. Wing CDR.Surendra Agnihotri and others [ (2020) 2 SCC 394 ], Mohan M.Shantanagoudar, J.(as he then was), in his partly supplementing and partly dissenting judgment, observed as follows: “32. It would be appropriate to begin with a reference to Order 8 Rule 9, which states thus: (omitted, as already extracted earlier) According to this Rule, after the filing of the written statement, it is open to plead a defence to a set-off or counterclaim without the leave of the court. However, any other pleading sought to be filed after the written statement requires the leave of the court. The Rule also vests the court with a discretion to allow filing of a written statement or additional written statement within a period not exceeding thirty days. 33. A plain reading of Order 8 Rule 9 makes it clear that the court has the discretion to allow any subsequent pleading upon such terms as it thinks fit. It is important to appreciate here that such subsequent pleading or additional written statement may include a counterclaim. This is because Rule 9 does not create a bar on the nature of claims that can be raised as subsequent pleadings. As long as the court considers that it would be proper to allow a counterclaim by way of a subsequent pleading, it is possible to file a counterclaim after filing the written statement.” 16. This Court in Baby v. Sebastian [ 2007 (3) KLT 885 ] held thus: “5. Pleadings” have been defined in the Code under O.VI R. 1 to mean “plaint or written statement”. O.VIII R. 9 deals with pleadings subsequent to plaint and written statement. “Subsequent pleadings” can be either by the plaintiff or by the defendant. The view of the learned Subordinate Judge that subsequent pleadings under O.VIII R. 9 are contemplated from the side of the defendant only when he raises pleas of set-off or counter-claim is clearly erroneous. What R.9 provides is only that no pleadings subsequent to the written statement of the defendant other than by way of defence to set off or counter-claim shall be presented except with the leave of the Court. It is thus clear that the reference to set off or counterclaim under R.9 of O. VIII is reference to subsequent pleadings raised by the plaintiff and not to subsequent pleadings raised by the defendant. It is thus clear that the reference to set off or counterclaim under R.9 of O. VIII is reference to subsequent pleadings raised by the plaintiff and not to subsequent pleadings raised by the defendant. As far as subsequent pleadings raised by the defendant are concerned and for any subsequent pleadings from the plaintiff other than those by way of defence to the pleas of set off and counter-claim, what is necessary is that the leave of the Court shall be obtained. Additional pleadings raised by the defendants subsequent to the written statement originally filed by them under O. VIII R. 1 of the Code are often referred to as additional written statements. Filing of additional written statement may be necessitated for the purpose of introducing new contentions or for clarifying or elaborating on the contentions already raised. That need not necessarily be for raising pleas of set off or counter-claim, since having regard to the rules of limitation applicable to pleas of set off and counter-claim, defendant may have to raise such pleas at the earliest opportunity itself”. 17. In the decision in Mohammed Ali and Another v. Khutejatul Kubra and Others (supra), relied on by Sri.P.B.Krishnan, the Karnataka High Court has held as follows: “6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 18 of the CPC only”. 18. An analysis of the O.6 R.17 and O.8 R.9 of the Code and the interpretation given in the above precedents, makes it abundantly clear that the two provisions are contextually different. The principal object behind permitting subsequent pleading is to supplement what has been inadvertently omitted or to clarify or elaborate on the facts on record. In any case, an application filed under O.8 R.9 of the Code cannot be equated with one filed O.6 R.17. This view stands fortified by the fact that even though a proviso was added to O.6 R.17 of the Code, by way of Act 22 of 2002, to put an end the practice of filing applications for amendment of pleadings after the commencement of trial, no such restriction is imposed under O.8 R.9 by way of the same amendment. Hence, the argument of Sri.P.B.Krishnan that both the above provisions are controlled by O.6 R.7 of the Code is untenable. I fully concur with the well-settled view of this Court in Baby v. Sebastian (supra) that an additional written statement can be filed, with the leave of the court, to clarify or elaborate on the contentions on record. 19. Now, coming back to the case at hand. A careful reading of Ext.P2 written statement shows that the respondents have contended that the suit is not maintainable. The respondents have made a mention of the filing of O.S.No.308/2011 in the written statement, although its relevance is not elaborated. Nonetheless, the court below, after considering the pleadings, the oral testimonies of the PW1 to PW3, DW1 to DW6 and the documents marked as Exts.A1 to A6, B1, C1 to C4 and X1 to X5, deemed it fit to formulate an additional issue as to whether the suit is barred by O.2 R.2 of the Code. Nonetheless, the court below, after considering the pleadings, the oral testimonies of the PW1 to PW3, DW1 to DW6 and the documents marked as Exts.A1 to A6, B1, C1 to C4 and X1 to X5, deemed it fit to formulate an additional issue as to whether the suit is barred by O.2 R.2 of the Code. But, then, the court below, by Ext.P3 judgment, dismissed the suit on the additional issue without answering the other issues already framed. 20. This Court, by Ext.P4 judgment, allowed RFA No.21/2019 and remanded the suit after observing as follows: “36. In the instant case, not only that there was no specific pleading as to the bar under O.2 R.2 C.P.C in the written statement, but the Court below framed an additional issue regarding the bar under O.2 Rule 2 C.P.C after posting the matter for final hearing on 26.10.2018, thereby the plaintiff was taken by surprise to meet the additional issue. It is surprising to notice that on 27.10.2018 itself, the matter was finally heard and the suit was dismissed on 31.10.2018, finding that the suit was hit by the provisions of O.2 R.2 C.P.C leaving all other issues originally framed unanswered. We are constrained to conclude that the learned Sub Judge lost sight of the salutary principles of a fair trial. 37. In view of the findings arrived at above, we deem it appropriate that we shall not record any finding on the merit of the contentions raised by the parties on the question of bar contained in O.2 R.2 C.P.C. 38. We have carefully gone through the entire proceedings. We are satisfied that there has been no complete or effectual adjudication of the proceedings, and the irregularity committed by the Court below has caused material prejudice on that account to the appellant/plaintiff. 40. In the present case, the trial Court has decided the case on a preliminary point after framing several other issues of facts, leaving all other issues unanswered. We have found that the course adopted by the trial court is illegal. We have also found that there has been no proper trial or no complete or effectual adjudication of the proceedings, and thereby, the appellant/plaintiff has suffered material prejudice. 42. We are of the view that the remand was caused not by the fault of the appellant/plaintiff, and hence the appellant is entitled to a refund of the court fee. We have also found that there has been no proper trial or no complete or effectual adjudication of the proceedings, and thereby, the appellant/plaintiff has suffered material prejudice. 42. We are of the view that the remand was caused not by the fault of the appellant/plaintiff, and hence the appellant is entitled to a refund of the court fee. In the result, (i) The appeal is allowed by way of remand. (ii) The judgment and decree dated 31.10.2018 in O.S No.37 of 2012 on the file of Subordinate Judge's Court, Chengannur are set aside. (iii) The O.S No.37 of 2012 is remanded to the Court below for trial afresh. (iv) Both sides are at liberty to adduce additional evidence. (v) The Court below will complete the trial of the case and pass revised judgment and decree expeditiously as possible at any rate within a period of three months from the date scheduled for the appearance of the parties before the trial court. xxx xxx”. 21. On going through the above-extracted portions of Ext.P4 judgment, it shows that this Court has allowed the appeal by way of remand and permitted the parties to adduce additional evidence but has consciously refrained from entering a finding on the contention of O.2 R.2 of the Code. Instead, the court below has been directed to decide the said issue with the other issues. After that the respondents have filed Ext.P6 application seeking leave to receive Ext.P5 additional written statement on record. 22. It is averred in the affidavit in support of Ext.P6 application that for the proper adjudication of the suit, it is necessary that the additional written statement be accepted on record, especially since the contention regarding O.2 R.2 of the Code is a mixed question of law and fact. 23. The court below, relying on the decisions of the Honourable Supreme Court in Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally and others [ (2009) 15 SCC 528 ] and the decision of this Court in Baby v. Sebastian (supra), and exercising its discretionary powers under O.8 R.9 of the Code, has granted leave and accepted the subsequent pleading by holding that the right of the respondents cannot be shutout. It is this discretionary order that the petitioner seeks to set aside by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 24. It is this discretionary order that the petitioner seeks to set aside by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 24. The scope and ambit of exercise of power of this Court under Article 227 of the Constitution of India is well settled in a plethora of precedents. The power is conferred to keep the subordinate courts and tribunals within the bounds of their authority and to see that they do their duty as expected or required of them in a legal manner. The power is restricted to the cases of serious dereliction of duty and flagrant violation of fundamental principles of law and justice, where if this Court does not interfere, a grave injustice will remain uncorrected. But, this is does not mean that the power under said Article is akin to the power of an appellate court. 25. Processual rules can be pigeon-holed into two: those which are merely rules of convenience and those which secure substantive rights. A court can deviate from the first category without consequence to any substantive right. Here the concept of “handmaids of justice” applies. Whereas the court may not deviate from the second category, which entails the risk of prejudicing a substantive right. Thus, when the legislature has left it to the discretion of the court to decide on permitting subsequent pleadings under O.8 R.9, without any restriction similar to the proviso to R.17 of O.6 of the Code, it is not for this Court to sit in appeal over such discretion exercised by the court below. 26. Commenting on the incongruity between procedure and substantive law, renowned jurist Professor Hepburn said: “the inveterate nature of the incongruity” between procedure and substantive law:-that “the former petrifies” while the latter is growing, and “the conservatism of the lawyer preserves the incongruity.” On an overall consideration of the pleadings and materials on record, the precedents referred to and the findings rendered above, I am of the definite view that there is no error or perversity in the impugned order warranting interference by this Court under Article 227 of the Constitution of India. I also find that no prejudice is caused to the petitioner, who would be at liberty to file his rejoinder to the written statement, if so advised, and explain his stand. The original petition fails and is dismissed. I also find that no prejudice is caused to the petitioner, who would be at liberty to file his rejoinder to the written statement, if so advised, and explain his stand. The original petition fails and is dismissed. The court below is reminded to dispose of the suit as directed by this Court in RFA No.21/2019.