Karnataka High Court
Smt Shylaja vs Smt Mallajammanni on 25 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.5688 OF 2022 (GM-CPC)
BETWEEN
SMT. SHYLAJA
AGED ABOUT 50 YEARS
W/O SRI M LOKESH
R/AT KUTTUWADI VILLAGE
BILIKERE HOBLI, HUNSUR TALUK
MYSURU-571 103.
...PETITIONER
(BY SRI Y K NARAYANA SHARMA, ADVOCATE)
AND
1. SMT. MALLAJAMMANNI
AGED ABOUT 52 YEARS
W/O SRI SUJENDRARAJE URS
R/AT SINDHUVALLI VILLAGE AND POST
KUTTARI HOBLI, NANJANGUDU TALUK
MYSURU-571 131.
2. SMT. RATHNAMMANNI
AGED ABOUT 74 YEARS
W/O LATE KRISHNARAJE URS
R/AT DEVAGALLI VILLAGE
BILIGERE HOBLI
HUNSUR TALUK-571 189.
3. SRI D K MALLARAJE URS
AGED ABOUT 50 YEARS
2
S/O LATE KRISHNARAJE URS
R/AT DEVAGALLI VILLAGE
BILIGERE HOBLI
HUNSUR TALUK-571 189.
4. SRI MADARAJE URS
AGED ABOUT 46 YEARS
S/O LATE KRISHNARAJE URS
R/AT DEVAGALLI VILLAGE
BILIGERE HOBLI
HUNSUR TALUK-571 189.
5. SRI GOPALARAJE URS
AGED ABOUT 59 YEARS
S/O LATE DODDA MALLARAJE URS
R/AT DEVAGALLI VILLAGE
BILIGERE HOBLI
HUNSUR TALUK-571 189.
....RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 18TH FEBRUARY, 2022 PASSED ON IA.NO.8 IN
ORIGINAL SUIT.NO.62 OF 2018 IN THE COURT OF PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, HUNSURU, AS PER ANNEXURE-
G AND ALLOW THE SAID APPLICATION SEEKING PERMISSION
TO FILE REJOINDER AND TAKE THE REJOINDER ON RECORD OR
PASS OTHER SUITABLE ORDERS AS DEEMED FIT BY THIS
HON'BLE COURT UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the plaintiff in OS No.62 of
2018 on the file of the Principal Senior Civil Judge and JMFC,
Hunsuru, challenging the order dated 18th February, 2022 on
IA.8.
2. The relevant facts for adjudication of this Writ Petition
are that, the plaintiff has filed suit for specific performance of
contract based on the registered agreement of sale dated 01st
June, 2015. Defendants entered appearance and filed detailed
written statement. The plaintiff filed application under Order
VIII Rule 9 of Code of Civil Procedure and sought to file rejoinder
of plaint to the written statement filed by the defendants. The
said application was resisted by the defendants. The trial Court,
after considering the material on record, by impugned order
dated 18th February, 2022 dismissed the application and being
aggrieved by the same, the petitioner has presented this Writ
Petition.
3. Sri Y.K. Narayana Sharma, learned counsel appearing
for the petitioner contended that the trial Court, has not properly
construed the scope of Order VIII Rule 9 of Code of Civil
Procedure and he further contended that the defendant has
urged certain aspects contrary to the plaint which requires to be
answered by the plaintiff by way of rejoinder and therefore, the
trial Court ought to have allowed the application in IA.8. In this
regard, he referred to the judgment of this Court in the cased of
KRISHNAMURTHY v. HANUMAKKA AND OTHERS reported in
2019(4) KCCR 3032.
4. Having Heard the learned Counsel for the parties, it is
not in dispute that the relief sought for by the plaintiff is for
specific performance of registered agreement of sale dated 01st
June, 2015. The defendant entered appearance and filed written
statement on 10th March, 2017. Evidence of the plaintiff
concluded and during the cross-examination of the defendant,
the plaintiff filed IA.8 under Order VIII Rule 9 of Code of Civil
Procedure and sought to file rejoinder to the plaint. The prayer
made in the application in IA.VIII reads under:
"For the reasons stated in the accompanying
affidavit, the applicant/plaintiff humbly pray that this
Hon'ble Court may be pleased to permit the
applicant/plaintiff to file rejoinder to the written
statement filed by the defendants by granting necessary
leave in the interest of justice and equity."
5. Plaintiff filed rejoinder to the plaint along with the
application. I have carefully examined the provisions contained
under Order VIII Rule 9 of Code of Civil Procedure. The
provisions enumerated in Order VIII Rule 9 of Code of Civil
Procedure provides for filing written statement to the counter
claim filed by the defendant to the written statement filed by
him. The marginal head note to the provision provide for
subsequent pleading. However, looking into the averments
made in the application IA.8, the plaintiff sets up a plea
inconsistent with the pleadings in the plaint. It is also noted that
the facts urged in the application filed under Order VIII Rule 9 of
Code of Civil Procedure is not a subsequent event. This Court, in
the case of GLEN FREDRICK PICARDO v. RODNUY PICARDO
reported in 2010(4) KCCR 3014 held that no pleading,
subsequent to the written statement, shall be permitted except
by way of defence to a set off or counter claim. It is further held
in the aforementioned case that, reply to written statement by
way of replication by plaintiff when there is neither a set off nor
a counter claim in the written statement, cannot be permitted.
In that view of the matter, I am of the view that the judgment
referred to by the learned counsel appearing for the petitioner is
not applicable to the facts on hand. I have also noticed that the
petitioner has filed IA.8 at the stage of cross-examination of
DW1 at the belated stage of the proceedings and therefore, I am
of the opinion that there is no perversity in the order passed by
the trial Court. Writ Petition is accordingly dismissed.
Sd/-
JUDGE
lnn
