Andhra Pradesh High Court - Amravati

Meda Swarnalatha vs Palipi Bhaskar on 21 April, 2023

   THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     CIVIIL REVISION PETITION No. 1328 OF 2020


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.282

of 2019 in O.S.No.13 of 2016, dated 06.12.2019 passed by

the I Additional District Judge, Visakhapatnam.

2. The brief facts of the case are that the

petitioners herein are the plaintiffs and the respondents

herein are the defendants in the main suit in O.S.No.13 of

2016. Originally, the suit in O.S.No.13 of 2016 was filed

before the Court of I Additional District Judge,

Visakhapatnam (for short "the Court below") for declaration

of title to the suit schedule property and for permanent

injunction against the respondents herein. When the

respondents attempted to occupy the suit schedule

property, basing on their sale deed and that they have

made enquiries about their vendors viz., Nidigonda family

and their ancestors. It is further stated that the suit

schedule properties are owned by the petitioners‟ family.

During pendency of the said suit, the petitioners herein

filed I.A.No.282 of 2019 before the Court below under

Order VIII Rule IX of C.P.C., seeking to file rejoinder to the

plaint. The Court below after hearing both sides dismissed

the said application by order dated 06.12.2019. Aggrieved

by the same, the present C.R.P., came to be filed.

3. Heard Sri Srinivasa Rao Bodduluri, learned

counsel for the petitioners and Sri K.Sivaram Prasad,

learned counsel for the respondent.

4. During hearing, the learned counsel for the

petitioners submits that the Court below ought to have

seen that the petitioners herein have filed rejoinder along

with I.A.No.282 of 2019 under order VIII Rule IX of the

Code of Civil Procedure, 1908, but without perusing the

affdiavit of the petitioners, the Court below dismissed the

said I.A. In fact, the facts, which were mentioned in the

rejoinder only about the genealogy of the vendors and

predecessors in title of the vendors. But the said facts of

the material was not available with the petitioners at the

time of filing of the suit. He further submits that as they did

not hear the family of „Nidigonda‟ who are residents of

Tallavalasa village till the respondents attempted to occupy

the suit schedule property.

5. Per contra, the learned counsel for the

respondents contended that Order VIII Rule 9 of C.P.C., is

not applicable to the to the respondents to make additional

pleadings. It is further stated that the written statement is

filed as long back as in the year 2016 and trial was

commenced and after lapse of three years, the petitioners

came with this petition, which deserves no consideration

and prays to dismiss the Civil Revision Petition.

6. This Court vide Order, dated 24.12.2020, has

granted interim stay of trial in the subject suit. Later it was

extended from time to time.

7. The learned counsel for the petitioner has

placed reliance a catena of the judgments of this High

Court, reported in (i) Gorantla Kondalarayudu V. Marvel

Organics, Hariprasad Nagar, Chirala & Ors1, this Court

held that:

4. Order 8 Rule 9 of C.P.C. should not be confused by reading together that it permits only additional written statement by way of pleadings. Because the expression used therein is 'that no pleading' subsequent to written statement shall be filed meaning thereby both plaint and written statement. Pleadings shall mean plaint and written statement as per Order 6 Rule 1 C.P.C. In that context, the pleadings and additional pleadings in Order 8 Rule 9 include the additional plaint also which can be either called as rejoinder or the reply in its real consequences.

5. In the result, the revision petition is dismissed, however, keeping open liberty for the petitioner to approach the trial Court under Order 8, Rule 9 C.P.C. seeking leave to file additional pleadings. No costs.

(ii). In Gavi Matt Samsthanam V. Danda

Narayana Swamy and others2, wherein this Court held

that:

4. It is well settled that citing a wrong provision of law is not a valid ground for refusing to grant relief which can be otherwise granted in law. The lower Court should have seen that Order 8, Rule

1997 (5) ALD 588

1999 (5) ALD 596

9 CPC specifically provides for filing subsequent pleadings by any of the parties with the leave of the Court. Further Order 6, Rule i7 provides for amendment of pleadings at any stage of the proceedings. As the plaintiff merely wanted to explain in what capacity the suit is instituted and how the Manager of the mutt is competent to institute the suit on behalf of the mutt in answer to the objection raised by the defendants in the written statement, the lower Court ought not to have refused leave to the plaintiff to file a rejoinder/additional written statement as the same does not, in any way, cause prejudice to the defendants. The lower Court clearly acted with material irregularity in the exercise of its jurisdiction in refusing such permission to the plaintiff. The impugned order is, therefore, set aside and IA No. 166 of 1998 filed by the plaintiff is allowed. The fact that IA No.166 of 1998 is allowed does not mean that the pleas taken by the plaintiff therein are upheld. The tenability or otherwise of the said pleas is to be considered in the suit. The CRP is accordingly allowed. No costs.

(iii). In Malgireddy Venkata Ramana Vs. Thippana

Narsi Reddy3, wherein this Court held that:

12. The 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. In the rejoinder the

2020 (3) ALD 82

plaintiff can be permitted to explain the additional facts, which have been incorporated in the written statement. Application under Order 8, Rule 9 CPC cannot be treated as one under Order 6, Rule 17 CPC as both are contextually different.

He also placed reliance on a decision of Hon‟ble

Supreme Court reported in Ratanlal Alias Babulal Chunilal

Samsuka Vs. Sundarabai Govardhandas Samsuka

(Dead) through Legal representatives and others4,

wherein the Hon‟ble Apex Court held that:

19. In response to issue (ii) we are concerned here with the custom of adopting married sons in the community of the appellant. The only evidence, the appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the appellant intends to prove requires greater proof than the one appellant adduced before the court. Moreover, there is no dispute with regard to the fact that the appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties."

2018 (11) SCC 119

(iv) Vyricharla Educational Society, Vizianagaram

District andanother V. B.Krishna Mohan,5 wherein this

Court held that:

35. In terms of Order VIII Rule 9 C.P.C., additional pleadings can be raised by a party to the suit, be it the plaintiff or the defendant. In order to support his defence, when the plaintiff has chosen to file an additional written statement in O.S.No.31 of 2013, objections raised on behalf of the defendants to receive the same, cannot stand. It cannot be stated that by the averments in the additional written statement, the plaintiff has made a departure from his defence in the suit. Even otherwise, considering the fact that O.S.No.2 of 2016 and O.S.No.31 of 2013 are being tried together, where the parties have to prove their respective cases, by adducing appropriate evidence, the proposed additional written statement cannot cause to any prejudice to the defendants. Added to it, the proposed amendment of the plaint in V7 MVR,J CUR.P Nos 414, 427 & 438 of 2019 QO.5.No.2 of 2016 is ta the very same effect as is pleaded in the additional written statement.

8. On perusing the material available on record

and the citations referred to above, this Court observed

that according to the petitioners the necessity has arisen to

file rejoinder to explain how their vendors got the plaint

2019 (5) ALD 161 (AP)

schedule property and that „Nidigonda family' though whom

the respondents are claiming title had no right in it.

9. It is pertinent to mention here that, in the

rejoinder the petitioner/plaintiff can be permitted to explain

the additional facts which have been incorporated in the

written statement. Application under Order 8 Rule 9 CPC

cannot be treated as one under Order VI Rule 17 CPC as

both are contextually different. Moreover, there is no

dispute with regard to the fact that the respondents did not

plead in their written statement about existence of any

custom as such. Parties to a suit are always governed by

their pleadings. Any amount of evidence or proof adduced

without there being proper pleading is of no consequence

and will not come to the rescue of the parties.