The division judge bench of Justice Dinesh Maheshwari and Justice Bela M. Trivedi of the apex court in the case of M/S Prime Properties Vs Sana Lakshmi Devi (Died) through her LRS & Ors held that the appeal is of such orders which may be conducive to the purpose of expeditious proceeding rather than protraction because of the procedural aspects relating to the filing of the pleadings. At the same time, a balance of the operations of the rules of procedure is also required to be ensured, so as to avoid any likely prejudice to any of the parties.
BRIEF FACTS
The factual matrix of the case is that the Plaintiff-Appellant filed the suit seeking cancellation of sale deed. The plaintiff was given the chance to amend the plaint on 17.01.2006 and as per the contesting respondents, the appellant did not carry out the amendment for a long time and ultimately the suits were dismissed for non-prosecution. Lately the suit was restored only in the year 2011. Thereafter, the contesting respondent filed the application seeking impleadments as party defendants which was, however, dismissed by the trial court. The high court set aside the order passed by the Trial Court and allowed the impleadment of contesting respondents. Further, the order passed by the High Court was challenged before the apex court and the same was dismissed with the direction to decide the suit within six months; and while reiterating such directions, this Court also made it clear that any other impleadment of individual members in future will not either derail or delay the proceeding in the suit. The contesting respondent filed the written statement to the amended plaint and the appellant also filed the additional written statement raising new grounds.
The appellant further seeks to leave to file the rejoinder. The Trial Court pronounced its order, rejecting the application filed by the appellant essentially on the ground that the proposed rejoinder had not been filed and in the absence thereof, the applications could not be granted. Thereafter, the reviewing petition was filed by the appellant before the trial court, and the trial court after considering the reviewing petition allowed the rejoinder already filed by the appellant to be taken on record. Further, the trial court framed 7 additional issues and posted the matter for trial. The order of the trial court was challenged by way of a revision petition before the high court which further results into the present appeal before the eapex court.
The learned counsel appearing on behalf of the plaintiff contended that when it was brought to the Court's attention that the proposed rejoinder had, in fact, been filed before the order was issued, the Trial Court reversed its earlier decision to dismiss the application for permission to file rejoinder. This decision was made because the Trial Court had been mistakenly under the impression that the proposed rejoinder had not been filed. It was also submitted before the hon’ble court that there had not been any jurisdictional error in the matter and there was no reason for the High Court to upset the order of the Trial Court in the exercise of its jurisdiction under Article 227 of the Constitution of India.
The learned counsel appearing on behalf of the respondent has contended that the present suit was filed in 2001 and the same is being dragged by the plaintiffs for no justified reasons. It was also further submitted that with multiple propositions of amendment of the plaint and then filing of the amended plaint at its own leisure with insertion of new averments, the plaintiff-appellant has only been intending to protract this litigation to the prejudice of the contesting respondents and in the name of rejoinder, the appellant wanted to introduce a whole new case.
COURT’S OBSERVATION
The apex court held that the Trial Court ever adverted to the fundamental aspect as to what were the facts pleaded by the defendants and what was the core of pleadings so as to form a specific opinion as to what pleadings called for rejoinder; if at all rejoinder was to be allowed. On the other hand, fact of the matter remains that the newly added defendants had filed written statements. Even if there had been delay in progression of the suit because of variety of factors and even if a part of those factors could be referable to the delay on the part of the plaintiff, that cannot take away the substance of the matter as regards the question as to whether the prayer for filing rejoinder was to be granted or not. Further, in a comprehensive consideration of all the relevant factors and features, the court is clearly of the view that this appeal calls for such orders which may be conducive to the purpose of expeditious proceeding rather than protraction because of the procedural aspects relating to the filing of the pleadings. At the same time, balance of the operations of the rules of procedure is also required to be ensured, so as to avoid any likely prejudice to any of the parties.
At last, the appeal is allowed and defendants no. 4 to 11 shall be permitted to place on record their further pleadings in the form of sur-rejoinder but only to the extent of new facts, if any, pleaded in the rejoinder filed by the plaintiff.
CASE NAME- M/S Prime Properties Vs Sana Lakshmi Devi (Died) through her LRS & Ors
CITATION- CIVIL APPEAL NO. OF 2022
CORUM- Justice Dinesh Maheshwari and Justice Bela M. Trivedi
DATE- 29.09.22
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