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2023 DIGILAW 798 (KAR)

Sudha S v. Jayalakshmi A.

2023-06-22

S.R.KRISHNA KUMAR

body2023
JUDGMENT 1. This petition by the plaintiff in OS.No.594/2019 on the file of the XLI Additional City Civil Judge, Bengaluru (for short, 'the trial Court') is directed against the impugned order dtd. 4/1/2020 whereby, the application filed by the petitioner-plaintiff under Order VIII Rule 9 of the Code of Civil Procedure, 1908 (for short, 'CPC') for permission to file a reply/rejoinder to the written statement was rejected by the trial Court. 2. Heard learned counsel for the parties and perused the material on record. 3. The material on record discloses that the petitioner-plaintiff instituted the aforesaid suit against the respondents-defendants for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. It is undisputed that the defendant No.1 is the mother of the plaintiff and defendant Nos.2 to 4 are the brother and sisters of the plaintiff. The suit schedule properties involves the estate of Late Sri. B.C.Anantharamaiah [husband of the defendant No.1 and father of the parties]. In the written statement, respondent Nos.1 and 2- defendant Nos.1 and 2, in addition to disputing and denying the various contentions and claims put forth by the plaintiffs have propounded the Will dtd. 11/6/2010 said to have been executed by Sri. B.C.Anantharamaiah. It is therefore contended that by virtue of the last Will and Testament dtd. 11/6/2010, the defendant No.2 has became the sole and absolute owner of the suit schedule properties and the suit was liable to be dismissed. After the written statement of defendant Nos.1 and 2 was filed whereby the Will was propounded by them, the petitionerplaintiff filed the instant application invoking Order VIII Rule 9 of CPC seeking permission to file a rejoinder/reply to the written statement. 4. A perusal of the said rejoinder will indicate that the petitioner-plaintiff has specifically denied and disputed the execution, genuineness and validity of the Will propounded by the defendant Nos.1 and 2. The said application filed by the petitioner having been opposed by the respondents-defendant Nos.1 and 2, the trial Court proceeded to pass the impugned order rejecting the application on the ground that Order VIII Rule 9 of CPC does not apply to a rejoinder/reply in the absence of setoff or counterclaim as held in the case of Glen Fredric Picardo Vs. Rodney Picardo and Ors., AIR 2011 KARNATAKA. Rodney Picardo and Ors., AIR 2011 KARNATAKA. Aggrieved by the impugned order passed by the trial Court, the petitioner is before this Court by way of the present petition. 5. A perusal of the impugned order will indicate that the sole ground on which the trial Court has rejected the application filed by the petitioner for permission to file a rejoinder/reply is that the same was impermissible in the light of the judgment of this Court in the case of Glen Fredric Picardo (supra). 6. In this context, it is relevant to state that the said judgment has been subsequently overruled by this Court in the case of Krishnamurthy Vs. Hanumakka and Others, 2019 (4) KCCR 3032 . wherein, it has held as under: "4. In view of these rival contentions, the short question of law of some significance that arises for consideration in this case is: Whether the provisions of Order VIII Rule 9 of CPC, 1908, do avail to the plaintiffs so that they too can file the Additional Pleadings as against the contentions in the Written Statements of the defendants in a suit?" 5. Rule 9 of Order VIII of CPC, as amended in 1976 and in 2002 reads as under: "9. 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 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." 6. A Co-ordinate Bench of this Court (Noronha, J) in the case of R. Dayananda Sagar Vs. Vatal Nagaraj, 1972 (2) Mys LJ 328 at para 13 observed: Order VIII Rule 9 of the Code refers to a pleading subsequent to the written statement of a defendant, to be filed by leave of the Court. The word "pleading" would, as it appears to me, include a reply Statement of the plaintiff. In the case of Mohammed Abdul Gafoor Vs. The word "pleading" would, as it appears to me, include a reply Statement of the plaintiff. In the case of Mohammed Abdul Gafoor Vs. Peddappayachari (RSA No.585/1974), another Coordinate Bench (G.N. Sabhahit, J) observed that, Order VIII Rule 9 of the Code of Civil Procedure which speaks of subsequent pleadings makes it manifest that, if, in the written statement, the defendant sets out a counter- claim or claims a set off, the plaintiff has a right of reply to the written statement and that forms part of the pleadings. If the plaintiff wants to file an additional statement, however, in other cases, he has to seek and take the permission of the Court. The Apex Court in the case of K.Laxmanan Vs. Thekkyil Padmini, AIR 2009 SC 951 at paragraph 31 observed "31. Pleadings as we understand under the Code of Civil Procedure (for short the "Code") and as is defined under the provision of Rule 1 Order VI of the Code consist only of a plaint and a written statement. The respondents/plaintiff could have filed a replication in respect to the plea raised in the written statement, which if allowed by the court would have become the part of the pleadings, but mere non filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement." 7. Yet another Co-ordinate Bench (Ajit J.Gunjal, J) in the case of M/s Amalgamated Bean Coffee Trading Co. Ltd Vs. Zarir Minoo Bharucha, (2005 (3)KCCR SN 169): ILR 2005 KAR 2089 after referring to Dayananda Sagar Case supra, at para 10 observed: "Order 8 Rule 9 would deal with a subsequent pleading which is filed subsequent to the filing of written statement of a defendant. It is not a case where the rejoinder is being filed to claim a set off or a counter claim. It is in the nature of a replication filed to the written statement, which is always permissible under the law. The Code of Civil Procedure far from pinning down the plaintiff to the plaint and the defendant to the written statement does contemplate further pleading. It is permissible to the plaintiff petitioner to file a replication to add to his pleas already made in the plaint. The only condition is the leave of the Court. The Code of Civil Procedure far from pinning down the plaintiff to the plaint and the defendant to the written statement does contemplate further pleading. It is permissible to the plaintiff petitioner to file a replication to add to his pleas already made in the plaint. The only condition is the leave of the Court. It is only meant for denying or clarifying the facts stated in the written statement. Fresh cause of action or fresh case is not brought about by filing replication. It is mainly clarificatory in nature. Consequently, I am of the considered view that the learned Trial Judge was not justified in rejecting the leave to file replication on the ground that it does not squarely fall under Order 8 Rule 9 of the Code of Civil Procedure." 8. The ratio decidendi emerging from the aforesaid decisions solicit an affirmative answer to the question framed above and being considered by this court. However, yet another Co-ordinate Bench of this Court (A.N.Venugopala Gowda, J) in the case of Mr.Glen Fredric Picardo Vs. Mr.Rodney Picardo, ( 2010 (4) KCCR 3014 ): ILR 2010 KAR 4522 at para 9 took a contrary view by observing as under: "9. A plain reading of Rule 9 under Order VIII does not provide for a reply by the plaintiff, subsequent to the written statement of a defendant, other than by way of defence to a set-off or counterclaim, with the leave of the Court and upon such terms as the Court thinks fit. However, the said provision enables the Court to call upon a party to file a written statement or an additional written statement within a fixed time. If, in the written statement filed by the defendant there were to be a set-of or counter-claim, the plaintiff who stands in the position of a defendant insofar as the claim with regard to either the set-off or counter- claim, is required to be granted leave to file a written statement. The intention of legislature in enacting Rule 9 is to meet the said situation and not to enable the plaintiff to file subsequent pleading by way of a replication." 9. The above decision appears to be a lone voice that was rendered in the peculiar circumstances of that case with no need of treating the case of Mohammed Abdul Gafoor, supra as per incurium. The above decision appears to be a lone voice that was rendered in the peculiar circumstances of that case with no need of treating the case of Mohammed Abdul Gafoor, supra as per incurium. This Court is in respectful disagreement with the same since it militates against a broad and consistent view as to the interpretation of Order VIII Rule 9 of CPC which is held to avail to the plaintiffs as well. Yet another reason for not treating this case as having the precedential value is that it misses the true meaning and intent of the provision of Rule 9 which employs the expression "by way of defence to a set-off or counter-claim shall be presented" and by sheer logic, such a defence can be put forward only by the plaintiff inasmuch as a set-off or a counterclaim filed by the defendant partakes the character of the plaint qua the plaintiff. An argument to the contrary cannot be sustained except by straining the language of this Rule which is founded on the principles of natural justice. An otherwise interpretation would put the plaintiff to some disadvantage of meeting the case of the defendant that emerges from the setoff or counter-claim. Thus this decision ignores the text, context and intent of the said provision and therefore lacks the binding force. 10. This apart, a plain reading of the said Rule gives a right to the plaintiff to file Additional Pleadings "by way of defence to set-off or counter-claim" which obviously will be filed by the defendants. Denial of such right which the Parliament has guaranteed to the plaintiffs cannot be readily inferred from the text and context of this Rule which has been construed by three Co-ordinate Benches of this Court during a span of a little less than half a century i.e., from the days of Dayananda Sagar Case in 1972. Upsetting such a long standing legal position may put the litigants to difficulty and therefore is not desirable. 11. The impugned order proceeds on a wrong legal premises presumably because of conflicting decisions of three Co-ordinate Benches of this Court on the one hand and the decision of one other Co-ordinate Bench and therefore, cannot be sustained. After all, granting of leave to the petitioner/plaintiff to file Additional Pleadings by way of Reply/Replication to the contentions in the Written Statement would prejudice none. After all, granting of leave to the petitioner/plaintiff to file Additional Pleadings by way of Reply/Replication to the contentions in the Written Statement would prejudice none. Conversely, denial of leave is likely to prejudice the petitioner/plaintiff, although the non-denial by him of the contentions in the Written Statement would not amount to their admission at all as held by the Apex Court vide AIR 2009 SC 951 , para 31. 12. In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; leave is granted to the petitioner/plaintiff in terms of his application under Order VIII Rule 9 of CPC for filing the Replication to the Written Statement of the defendant Nos.8 to 13. 13. Since the suit is of the year 2005, the learned trial judge is requested to try and dispose off the same as expeditiously as possible and in any circumstance, within an outer limit of one year. No costs. It is also relevant to state that the expression "Pleadings" is defined under Rule 3(2) of the Karnataka Civil Rules of Practice, 1967 as under: "Pleadings" shall include plaints, written statements, memoranda of appeals, cross-objections, original petitions, applications, counter statements, replies, rejoinders and every statement setting out the case of a party in the matter to which the pleadings relate. 14. In view of the aforesaid facts and circumstances and in the light of the decision of this Court in the case of Glen Fredric Picardo (supra) having expressly overruled and declared per se by this Court in the case of Krishnamurthy Vs. Hanumakka and Others (supra), I am of the considered opinion that the impugned order passed by the trial Court deserves to be set aside and the application filed by the petitioner deserves to be allowed by permitting plaintiff to file reply/rejoinder, subject to reserving liberty in favour of the respondent Nos.1 and 2- defendant Nos.1 and 2 to file additional written statement to the rejoinder/reply filed by the plaintiff. 15. In the result, I proceed to pass the following: ORDER a. The petition is hereby allowed. b. The impugned order dtd. 4/1/2020 in O.S.No.594/2019 on the file of the XLI Additional City Civil Judge, Bengaluru is hereby set aside. c. The application filed by the petitioner/plaintiff under Order VIII Rule 9 of CPC is hereby allowed. 15. In the result, I proceed to pass the following: ORDER a. The petition is hereby allowed. b. The impugned order dtd. 4/1/2020 in O.S.No.594/2019 on the file of the XLI Additional City Civil Judge, Bengaluru is hereby set aside. c. The application filed by the petitioner/plaintiff under Order VIII Rule 9 of CPC is hereby allowed. d. The petitioner is permitted to file reply/rejoinder which is directed to be received on record by the trial Court. e. Liberty is also reserved in favour of the respondent Nos.1 and 2-defendant Nos.1 and 2 to file additional written statement, if any to the reply/rejoinder of the petitioner/plaintiff. f. Having regard to the fact that the suit is of the year 2019, the trial Court is directed to conclude the proceedings on or before 21/12/2023. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.