[Cites 3, Cited by 0]
Rajasthan High Court - Jodhpur
Chenaram vs Devaram (2026:Rj-Jd:10467) on 25 February, 2026
[2026:RJ-JD:10467]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2876/2026
Chenaram S/o Shri Jetharam, Aged About 52 Years, Resident Of
Samdari, Tehsil Samdari, District Balotra, Rajasthan.
----Petitioner
Versus
1. Devaram S/o Shri Jetharam, Aged About 50 Years,
Resident Of Samdari, Tehsil Samdari,district Balotra,
Rajasthan.
2. Sub-Registration Officer, Tehsil Office, Samdari, District
Balotra, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Uttam Singh Rajpurohit
For Respondent(s) : Mr. Govind Suthar
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
25/02/2026
1. By way of the present writ petition, the petitioner-plaintiff
has assailed the order dated 07.01.2026 (Annx.5) passed by the
learned District Judge, Balotra in Civil Original Suit No. 43/2024
(Chenaram vs. Devaram & Anr.), whereby the application filed by
the petitioner under Order VIII Rule 9 of C.P.C. seeking permission
to place subsequent pleadings (rejoinder) on record, has been
rejected.
2. Heard learned counsel for the parties.
3. Learned counsel for the petitioner submits that the petitioner
instituted a civil suit for partition and permanent injunction in
respect of the suit property, a residential pattasud land, originally
allotted in the name of Late Jetharam, who had constructed shops
and residential portions thereon. Upon his intestate demise on
13.10.2023 (his wife having predeceased him), the property is
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stated to have devolved equally upon his two sons, the petitioner
and respondent No.1, each holding a one-half share.
4. It is the petitioner's case that both parties continued in joint
possession and jointly collected rental income. However,
respondent No.1 subsequently attempted to interfere with the
petitioner's possession and asserted exclusive ownership on the
basis of an alleged forged Will purportedly executed by Late
Jetharam.
5. It is further submitted that respondent No.1, in his written
statement, pleaded that the property was the self-acquired
property of Late Jetharam; that the petitioner had separated long
ago and had been allotted separate property; and that a
registered Will dated 08.04.2022 had been executed by Jetharam
in favour of the defendant Devaram, pursuant to which Pattas
Nos. 24, 25 and 26 dated 08.10.2023 were issued in his name.
6. During the pendency of the suit, the petitioner moved an
application under Order VIII Rule 9 read with Section 151 CPC
seeking leave to file a rejoinder to specifically deny the new pleas
introduced in the written statement, namely, the execution of the
registered Will, issuance of pattas in favour of the defendant and
the claim of exclusive ownership. The application was opposed by
the defendant. The learned trial court, by order dated 07.01.2026,
rejected the application holding that the written statement did not
introduce any new facts, that the proposed rejoinder was merely
clarificatory in nature, that non-filing of a rejoinder does not
amount to admission, and that the application appeared to have
been filed to delay the proceedings.
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7. Learned counsel for the petitioner contends that the Court
possesses discretion to permit subsequent pleadings where the
interests of justice so require. It is argued that the written
statement introduced entirely new facts, particularly with respect
to the alleged registered Will dated 08.04.2022, issuance of pattas
in favour of the defendant and his claim of exclusive ownership
and possession. These pleas, it is submitted, strike at the root of
the title and materially change the nature of the controversy.
8. It is further contended that under Order VIII Rules 3 to 5 of
C.P.C., material allegations must be specifically traversed and
failure to do so may prejudice the plaintiff's case. Denial of an
opportunity to file a rejoinder, therefore, amounts to violation of
principles of natural justice and deprives the petitioner of the right
to rebut the new defence. It is also submitted that written
statement was filed only on 01.07.2025 and immediately
thereafter, present application was filed by the petitioner on
28.10.2025. The issues have not been framed and the evidence of
the parties is yet to commence, therefore, no prejudice would be
caused to the defendant.
9. In support of his submissions, learned counsel for the
petitioner has placed reliance on the judgment of the Madras High
Court in Kaliammal & Another vs. R. Muthusamy Gounder &
Another reported in 2010 Supreme (Mad) 1550.
10. Per contra, learned counsel for respondent No.1 submits that
the suit property was the self-acquired property of Late Jetharam;
that the petitioner had separated long ago and had been provided
separate property; and that a valid registered Will dated
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08.04.2022 was executed in favour of the defendant, on the basis
of which pattas were lawfully issued in his name.
11. It is additionally contended that no new facts have been
introduced in the written statement and that it merely elaborates
the defence. The plea regarding the Will constitutes a natural
defence in a partition suit and does not give rise to any fresh
cause requiring a rejoinder. It is also urged that Order VIII Rule 9
of CPC confers discretion upon the Court and the plaintiff must
demonstrate necessity for filing subsequent pleadings. According
to the respondent, the application is vague and fails to specify the
exact new pleadings sought to be rebutted.
12. I have thoughtfully considered the rival submissions
advanced by learned counsel for the parties and have carefully
perused the material available on record.
13. The principal question which arises for determination is
whether, in the facts and circumstances of the present case, the
learned trial Court was justified in declining permission to the
petitioner to file a rejoinder to the written statement submitted by
respondent No.1.
14. Order VIII Rule 9 of C.P.C. mandates that no pleading
subsequent to the written statement shall be presented except
with the leave of the Court and upon such terms as it deems fit.
The provision undoubtedly confers wide discretion upon the Court;
however, such discretion must be exercised judiciously, guided by
sound legal principles and with a view to ensuring fair and
effective adjudication of the real controversy between the parties.
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15. In the case of Smt. Mukut Raj Laxmi & Anr. vs. Dr.
Jitendra Singh & Ors. (S.B. Civil Writ Petition
No.1195/2015) decided on 26.11.2015), a coordinate Bench
of this Court observed as under :-
"A bare reading of the aforesaid provision makes it amply clear
that a very wide discretion is conferred on the court in granting
leave to a plaintiff for filing subsequent pleadings. Well it is true
that in the guise of subsequent pleadings, a plaintiff cannot be
allowed to setup a new case or incorporate certain inconsistent
pleadings but then, plaintiff's right to file replication to meet with
some of the new facts averred in the written statement is clearly
permissible under Order VIII Rule 9 CPC.
The ratio decidendi of the legal precedents on which learned
counsel for the petitioner has placed heavy reliance cannot be
disputed but then the principles enunciated therein are required to
be applied in the backdrop of facts and circumstances of an
individual case and there cannot be any straight-jacket formula.
While considering the prayer of the plaintiff to file rejoinder, the
nature of suit, the reliefs craved for and the pleas sought to be
raised in the written statement are of great significance. If in the
written statement, defendant has incorporated certain additional
pleas including the plea of adverse possession, maintainability of
the suit and limitation, such pleas in strict sense may not be a
defence in the nature of set off or counter claim but are certainly in
the nature of new facts, which if not controverted, can prejudice the
cause of the plaintiff. It is in that background, the court is required
to adopt a realistic and pragmatic approach rather than pedantic
and idealistic approach while considering application under Order
VIII Rule 9 CPC. A thorough evaluation of the impugned order on
the touchstone of legal principles governing the province of
subsequent pleadings makes it abundantly clear that learned court
below has taken note of all the aspects while exercising its
discretion. From the order impugned, it is clearly discernible that
learned court below has scrutinized the requisite averments of the
proposed rejoinder in the backdrop of written statement and
thereafter has recorded its definite finding that pleas sought to be
raised in the rejoinder are neither in nature of setting up a new
case nor it contains inconsistent pleadings. Therefore, in the
considered opinion of this Court, the discretion exercised by
learned court below is judicious and it is rather difficult to concur
with the submissions of learned counsel for the petitioners that it
has transgressed its jurisdiction in passing the impugned order."
Applying the aforesaid principles to the facts of the present
case, this Court is of the view that the written statement sets up
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specific pleas concerning the alleged execution of a registered Will
dated 08.04.2022 and the consequent issuance of pattas in favour
of the defendant, thereby laying claim to exclusive ownership.
These averments constitute foundational facts which directly assail
the petitioner's assertion of joint ownership based on intestate
succession. If substantiated, such pleas would have the effect of
non-suiting the petitioner.
16. Significantly, there is no specific objection from the
respondent that, by way of the proposed rejoinder, the petitioner
seeks to set up an altogether new or inconsistent case beyond the
scope of the plaint. The proposed rejoinder is intended only to
specifically traverse and rebut the new factual assertions
introduced in the written statement. In such circumstances, the
bar against raising a new case through subsequent pleadings is
not attracted.
17. It transpires from the record that written statement was filed
on 01.07.2025 and that the application seeking leave to file a
rejoinder was submitted on 28.10.2025. The issues in the suit are
yet to be framed and both parties will have adequate opportunity
to lead evidence. At this stage, allowing the rejoinder would
neither cause any significant delay nor prejudice the defendant,
who will have full opportunity to contest the same during the
course of trial.
18. In view of the foregoing discussion and in light of the law laid
down in Smt. Mukut Raj Laxmi (supra), this Court is of the
considered opinion that the learned trial Court failed to exercise its
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discretion in a judicious manner while rejecting the application
under Order VIII Rule 9 CPC.
19. Accordingly, the writ petition deserves to be and is hereby
allowed. The impugned order dated 07.01.2026 (Annx.5) passed
by the trial Court is quashed and set aside.
20. The petitioner is granted liberty to file rejoinder to the
written statement. The trial court shall thereafter proceed to
frame issues and decide the suit strictly in accordance with law,
without being influenced by any observations made herein, which
are confined solely to adjudication of the present writ petition.
21. Stay petition as well as all pending application(s), if any,
shall also stand disposed of.
(MUKESH RAJPUROHIT),J
57-/Jitender//-
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