Prabodh Artha Sanchay Pvt. Ltd. ... vs Shri. Arvind Rasiklal Shah
2021 Latest Caselaw 2119 Bom

                                                                             (37) WP-13178-17.doc

BDP-SPS


 Bharat
 D.
 Pandit                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Digitally signed
 by Bharat D.
 Pandit
 Date:
                                        CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION NO. 13178 OF 2017
 2021.02.04
 14:54:31 +0530




                    Prabodh Artha Sanchay Pvt. Ltd.                    .... Petitioner.
                               V/s
                    Shri Arvind Rasiklal Shah                          ..... Respondent.

                    Mr. Sushil Nimbalkar for the Petitioner.
                    Mr. Vilas B. Tapkir for the Respondent.

                                         CORAM: NITIN W. SAMBRE, J.

                                         DATE:     FEBRUARY 2, 2021
                    P.C.:-

                    1]       I have heard respective Counsels.


                    2]       This Court while dealing with the similar issue in the matter of

Shobha w/o Wasudeo Tadas and ors vs. Namdeo s/o Balaji Tadas and

others reported in 2016(2) Mh.L.J. 178 has in para 8 observed thus :

"8. Under provisions of Order VIII Rule 9 of the Code, no pleadings subsequent to the written statement of a defendant other than by way of defence to set off or counter claim can be presented except with the leave of the Court. Reference may be made to the observations of learned Single Judge of the Delhi High Court in paras 14 & 15 of the judgment in Anant Construction Private Limited (supra). It was observed thus:

"14. Decided cases in India use the term rejoinder loosely for a reply or replication fled by the plaintif in answer to the defendant's plea. Strictly speaking a reply fled by the plaintif (when permissible) is a replication. A

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pleading fled by the defendant subsequent to replication is a rejoinder.

15. A replication is not to be permitted to be fled ordinarily, much less in routine. A replication is permissible only in three situations: (1) when required by law; (2) when a counter claim is raised by the defendant; (3) when the Court directs' or permits a replication being fled. The Court may direct fling of a replication when the court having scrutinized the plaint and the written statement feels the necessity of asking the plaintif to join specifc pleadings to a case specifcally and newly raised by the defendant in the written statement. The plaintif may also feel the necessity of joining additional pleading to put forth his positive case in reply to the defendant's case but he shall have to seek the leave of the court by presenting the proposed replication along with an application seeking leave to fle the same. The Court having applied its mind to the leave sought for, may grant or refuse the leave. Ordinarily the necessity of doing so would arise only for 'confession and avoidance'."

Learned Single Judge of the Rajasthan High Court in State of Rajasthan & another (supra) has referred to certain principles as regards the nature of provisions under Order VIII Rule 9 of the Code. In para 9 therefore, it was observed thus:

"9. The principles deducible from the above discussion may be summarized thus-

a) The plaintif cannot be allowed to introduce new pleas by way of fling rejoinder, so as to alter the basis of his plaint.

b) In rejoinder, the plaintif can be permitted to explain the additional facts which have been incorporated in the written statement.

c) The plaintif cannot be allowed to come

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forward with an entirely new case in his rejoinder.

d) The plaintif cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.

e) Application under Order VIII Rule 9, Civil Procedure Code cannot be treated as one under Order VI Rule 17, Civil Procedure Code as both are contextually diferent."

3] As such, provisions of Order VIII Rule 9 of the Civil

Procedure Code do not prescribe for filing of rejoinder and if at all

any new plea is to be raised it has to be by way of amendment to

the plaint.

4] I view of consent extended by the learned Counsel for the

Respondent/Plaintiff, the order impugned dated 19 th June, 2017

passed by 12th Joint Civil Judge, Senior Division, Pune in Special

Civil Suit No.480 of 2016 is hereby quashed and set aside.

5] However, this will not preclude the Respondent/Plaintiff

from moving amendment application under Order VI Rule 17

based on the pleadings in the rejoinder which was already

tendered. If such an application is moved, learned Trial Court

shall deal with the same without being influenced by setting aside

of the order impugned and delay in moving such application be

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considered particularly in the light of the fact of pendency of

present Petition before this Court. Application for amendment to

be so moved within four weeks from today be decided

expeditiously.

6] Petition stands disposed of in the aforesaid terms.

( NITIN W. SAMBRE, J. )