[Cites 3, Cited by 0]
Rajasthan High Court - Jodhpur
Pratibha Industries Ltd vs State Of Rajasthan (2026:Rj-Jd:4300) on 16 January, 2026
[2026:RJ-JD:4300]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 94/2026
Pratibha Industries Ltd., Having Its Head Office At Office No.
1607/1608, 16Th Floor, Cyber One, Behind Odisha Bhawan, Plot
No. 4 And 6 Sector-30A, Vashi, Navi Mumbai - 400703,
Maharashtra. Through Its Authorised Signatory Satyanarayan
Goswami Son Of Shri Onkar Goswami, Ageda Bout 41 Years,
Resident Of 144, Rupavas Daravaja, Kakod Via Baneta, Kakod
Tonk (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Public Health And Engineering Department (Phed),
Government Of Rajasthan, Government Secretariat,
Jaipur (Raj.).
2. Chief Engineer (Projects), Public Health And Engineering
Department (Phed), Jodhpur, Rajasthan.
3. Additional Chief Engineer (Projects), Public Health And
Engineering Department (Phed), Barmer, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Ramit Mehta,
Mr. Tarun Dudia,
Mr. Aman Khan
For Respondent(s) : Mr. P.S. Chundawat,
Mr. Mayank Vyas
HON'BLE MR. JUSTICE SANJEET PUROHIT
Order
Reportable
16/01/2026
1. Present writ petition is filed challenging order dated
20.12.2025, passed by learned Commercial Court No.1, Jodhpur in
Civil Original Suit No.41/2022, rejecting application filed by
petitioner under Order VIII Rule 9 of CPC seeking to place on
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record the subsequent pleading (rejoinder) to the written
statement was rejected.
Brief Facts
2. It is stated in the plaint that petitioner is a public limited
company engaged in execution of large infrastructure projects.
Pursuant to NIT No. 09/2011-12 issued by the Rajasthan Water
Supply and Sewerage Management Board for execution and 10
years' O&M of the Barmer Lift Water Supply Project (Phase-II Part-
A) on turnkey basis, the petitioner's bid was accepted and a
contract dated 23.08.2012 for about ₹168 crores was awarded.
3. It was further stated that, under the contract, the
respondents were required to provide full site access, timely
approvals of drawings, designs, vendors, and QAPs, and to make
payments in a timely manner. It was, however, alleged that the
sites were handed over in a piecemeal and delayed manner; that
statutory clearances (including Form-V and PAC) and various
approvals were not accorded within the stipulated time; and that
certain payments were subject to deductions towards mobilization
advance, interest, and liquidated damages. It was contended that
these circumstances had an impact on the progress of the project.
It was also stated that requests for extension of time and revision
of milestones were considered and granted on a provisional and
short-term basis.
4. Finally, respondents rescinded the contract on 24.01.2018,
forfeited the security deposit and proposed to get the balance
work executed at the petitioner's risk and cost. After issuance of a
fresh NIT in March 2019 and award of the remaining work to
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another contractor, the petitioner, upon exhaustion of the
contractual dispute-resolution mechanism, instituted a commercial
suit in 2022 seeking declaration of termination of contract to be
illegal and void and also so for recovery and damages.
5. The respondents filed their written statement raising
preliminary objections and several factual and legal assertions.
Suit proceedings went ahead and both parties adduced their
evidences. After completion of evidence, M/s Kalinga Metalics Ltd.
took over the petitioner's business as a going concern pursuant to
liquidation proceedings. Learned Commercial Court by allowing
application under Order XXII Rule 10 CPC permitted continuation
of suit by the new management.
6. Thereafter, the petitioner filed an application under Order
VIII Rule 9 CPC seeking permission to place on record rejoinder to
rebut new and incorrect allegations, preliminary objections and
distinct interpretations of clauses of the said contract said to be
introduced in the written statement. The respondents opposed the
application on the ground of delay.
7. By order dated 20.12.2025, learned Commercial Court
rejected the application and refused to take the rejoinder on
record on the ground that petitioners have preferred the said
application at a highly belated stage i.e., after completion of
evidence whereas respondents have already filed the written
statement on 09.07.2024.
Submissions by Parties
8. Learned counsel for the petitioner submitted that Order VIII
Rule 9 does not prescribe any specific period of limitation for filing
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of a rejoinder. Therefore, the order passed by learned Commercial
Court is erroneous in law, inasmuch as the said application has
been rejected solely on the ground of delay, which by itself is not
a valid ground for refusing rejoinder.
9. It was, therefore, contended that filing of the rejoinder had
become necessary to explain new facts introduced by the
respondent in the written statement, particularly in view of the
fact that the amount involved in the suit would have a direct
bearing on the public money as the new purchaser and the lender,
is a consortium of 17 banks.
10. He further submitted that the Commercial Court failed to
consider the parameters prescribed under Order VIII Rule 9 of the
Code of Civil Procedure, as well as the settled legal position laid
down in various judicial pronouncements governing the
adjudication of applications under the said provision.
11. He stated facts pleaded in the rejoinder are not in any way
changing the nature of suit and that the same was filed only to
meet the averments raised in the written statement, which is
essential for the proper and effective adjudication of the matter.
Therefore, the application under Order VIII Rule 9 ought to have
been allowed by the Learned Commercial Court. Counsel for
petitioner placed reliance on (i) Olympic Industries v. Mulla
Hussainy Bhai Mulla Akberally (2009) 15 SCC 528, (ii) Babu
Bhai Kashyap v. Praful Chand Contractor 2012 SCC OnLine
Raj 3801, (iii)Yogesh Tripathi v. Mangi Lal 2017 SCC
OnLine Raj 3539, (iv)Mukut Raj Laxmi v. Jitendra Singh
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2015 SCC OnLine Raj 7054 and (v)Selvam@ Selvaraj v P.
Ashok CR No. 1803/2021.
12. Learned counsel for the respondent submitted that the order
passed by the learned Commercial Court is well-reasoned and
does not call for any interference by this Court. It was further
contended that the petitioner is seeking to file the rejoinder
merely as a device to delay the proceedings.
13. He further submitted that in paragraph 6 of the application
filed under Order VIII Rule 9, the petitioner has categorically
admitted that no new facts have been introduced in the written
statement, therefore, there is no justification whatsoever for
permitting the rejoinder to be taken on record.
14. Learned counsel for the respondent by placing reliance upon
the judgment in Datta v. Sonabai Ganpati Methe, 2023 SCC
OnLine Bom 487, submitted that a rejoinder/replication can be
filed only in three eventualities enumerated therein, namely: (i)
when required by law; (ii) when a counter-claim is raised or a set-
off is pleaded by the defendant; and (iii) when the Court, in its
discretion, directs or grants permission for filing such replication.
Since none of the eventualities exist in the present case rejection
of application was justified.
Analysis and Reasoning
15. Heard learned counsels appearing for the parties at length
and perused the material on record.
16. A short question for adjudication has arisen in the present
case as to whether rejection of petitioner's application for taking
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rejoinder on record by impugned order dated 20.12.2025 solely on
the ground of delay, is justified?
17. Before dealing with facts and law on the point, it is felt
desirable to refer to the statutory provision of Order VIII Rule 9.
The same is reproduced herein below:
9. Subsequent pleadings.--No pleading subsequent to the
written statement of a defendant other than by way of defence to
set-off or counter-claim shall be presented except by the leave of
the Court and upon such terms as the Court thinks fit; but the
Court may at any time require a written statement or additional
written statement from any of the parties and fix a time of not
more than thirty days for presenting the same.
18. Order VIII Rule 9 CPC neither stipulates a limitation period
for bringing rejoinder on record nor specifies the stage at which it
should be brought on record. Rather it provides for power of the
Court to all such applications at any time. Therefore, rejection of
the said application by the learned Commercial Court merely on
the ground of delay is erroneous, as delay, by itself, could not
have been a sole basis for such rejection.
19. This Hon'ble High Court in Mukut Raj Laxmi (Supra) held
that Order VIII Rule 9 does not prescribe any time limit for filing
of rejoinder and the same can allowed at any stage. The relevant
paragraph is reproduced herein below:
"26. The contentions of the petitioners concerning belated
presentation of application by the respondents-plaintiffs for
craving leave of the court to file rejoinder and the fact that
proposed rejoinder is quite lengthy are per se superfluous. As a
matter of fact, learned court below has observed that application
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with proposed rejoinder is filed by the respondents-plaintiffs
before framing of issues and, therefore, it cannot be said that
endeavour was made by the respondents-plaintiffs belatedly. It is
also noteworthy that under CPC, no time limit is prescribed
for filing rejoinder and, therefore, this plea is wholly
untenable. The fact that rejoinder is lengthy is also a plea which
cannot be countenanced as per the provisions of CPC. The
provisions of CPC nowhere envisage the length and breadth of the
plaint/written statement or the rejoinder. As such, there cannot
be any restriction on the number of pages of the rejoinder.
Moreover, the respondents-plaintiffs have filed rejoinder to meet
the pleadings incorporated in the written statement which too is
quite lengthy. Therefore, this argument of learned counsel for the
petitioners merits outright rejection."
20. Moreover, the Hon'ble Apex Court in Olympic Industries
(Supra) held that mere delay is not a sufficient ground for
dismissal under Order VIII Rule 9. The relevant paragraph is
reproduced herein below:
"10. So far as this ground is concerned, we do not find that delay
is a ground for which the additional counter-statement could not
be allowed, as it is well settled that mere delay is not
sufficient to refuse to allow amendment of pleadings or
filing of additional counter-statement. At the same time,
delay is no ground for dismissal of an application under Order 8
Rule 9 of the Code of Civil Procedure where no prejudice was
caused to the party opposing such amendment or acceptance of
additional counter-statement which could easily be compensated
by costs. That apart, the delay in filing the additional counter-
statement has been properly explained by the appellant."
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Thus, the reason as assigned by learned Commercial Court
while rejecting petitioner's application is not sustainable in eyes of
law.
21. The Learned Commercial Court also failed to consider other
valid parameters, which ought to have been considered while
deciding applications under Order VIII Rule 9 as laid down by
learned Courts in a catena of judgments. In State of Rajasthan
v. Mohd. Iqbal (1998DNJ (Raj.)275), this Hon'ble High Court
laid down several parameters and principles governing the scope
of the said provision. The relevant paragraph is reproduced herein
below:
"9. The principles deducible from the above discussions may be
summarized thus-
a) The plaintiff cannot be allowed to introduce new pleas by way
of filing rejoinder, so as to alter the basis of his plaint.
b) In rejoinder, the plaintiff can be permitted to explain
the additional facts which have been incorporated in the
written statement.
c) The plaintiff cannot be allowed to come forward with an
entirely new case in his rejoinder.
d) The plaintiff cannot be permitted to raise inconsistent pleas so
as to alter his original cause of action.
e) Application under Order 8, Rule 9, CPC cannot be treated as
one under Order 6, Rule 17, CPC as both are contextually
different."
The Hon'ble High Court reiterated these principles in Babu
Bhai Kashyp (Supra) and Yogesh Tripathi (Supra). None of
the above-mentioned parameters were considered by learned
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Commercial Court and therefore, the said order suffers from
infirmity, which renders the order impugned erroneous.
22. Moreover, apart from traversing the averments made in the
plaint, the respondents, in their written statement, introduced
fresh explanations relating to the factual matrix, and also
advanced new interpretations of the clauses of contract in
question. In such circumstances, this Court finds that the filing of
a rejoinder was not only justified but also imperative, in order to
afford the petitioner an effective opportunity to explain and rebut
the said new pleas and interpretations.
23. Counsel for respondent objected the application for rejoinder
on the ground that petitioner has categorically admitted in
paragraph 6 of the said application that no new facts have been
introduced in the written statement. In view of such an admission,
he contended that there is no justification whatsoever for
permitting the rejoinder to be taken on record. However, this
Court finds that the respondent has read the said averments in its
isolation, which is not permissible. As a matter of fact, the
petitioner in paragraph 13 and 14 of the application has clearly
stated that the rejoinder is necessary for extending explanations
to the additional facts and to controvert wrong interpretations of
the clauses of the contract as mentioned in the written statement.
24. It is a settled position of law that rejoinder can be filed to
explain new facts introduced in the written statement, as in the
present case. This Hon'ble High Court in Mohd. Iqbal (Supra)
has categorically affirmed the same in para 9(b) of the said
judgment.
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25. Moreover, this Hon'ble High Court in Yogesh Tripathi
(Supra) allowed the proposed rejoinder by plaintiffs to controvert
the additional facts introduced by defendants. The relevant
paragraphs are reproduced herein below:
"12. A perusal of the proposed rejoinder submitted by the
petitioners reveals that the plaintiffs have neither sought to
introduce new facts nor they are seeking amendment of the plaint
by way of proposed rejoinder. The plaintiffs have rather tried to
controvert additional fact brought on record by the defendants, by
way of the written statement, which, as a matter of fact were
beyond the scope of the suit.
13. In overall analysis of the facts, this Court is of the considered
opinion that the learned Trial Court has committed an error in
refusing the plaintiffs to file rejoinder."
26. The counsel for respondent placed heavy reliance on the
decision in Datta (Supra). The said decision is distinguishable on
more than one grounds. Firstly, in the said case, on facts, the
material sought to be brought on record by way of rejoinder was
already available before the Court, whereas in the present case,
the petitioner seeks to respond to and explain new
facts/explanations/interpretations introduced by the respondents.
Secondly, even the third contingency enumerated in the said
judgment clearly speaks about the discretionary power of the
Court to permit filing of a rejoinder in exercise of powers under
Order VIII Rule 9 CPC, in deserving cases.
27. The counsel for respondents also contended that petitioners
have preferred the said application after gross delay considering
the written statement was filed on 09.07.2024. However, as stated
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by petitioners that pursuant to liquidation proceedings before the
National Company Law Tribunal, M/s Kalinga Metalics Ltd. has
acquired the business undertaking of the petitioner as a going
concern, along with all its assets, rights, title and interests.
Therefore, due to the change in entire management of the
petitioner, the delay the filing the rejoinder is sufficiently justified.
28. Counsel for respondents expressed his apprehension that
filing of rejoinder would result in re-opening or re-initiating the
trial and the same would further delay the proceedings. However,
the petitioner in unequivocal terms has undertaken before this
Court that upon the rejoinder being taken on record, no additional
evidence shall be led, nor shall any further cross-examination of
the defendants' witnesses be sought. In view of the said
undertaking, the objection raised by the respondent cannot be
sustained.
29. Thus, in view of the aforesaid reasoning and having regard
to the nature of the rejoinder, this Court finds that learned
Commercial Court committed an error in disregarding the
parameters laid down under the relevant statutory provisions as
well as the settled judicial pronouncements governing the stage of
taking of a rejoinder on record. The rejection of the application
merely on the ground of delay cannot be sustained, inasmuch as it
is a well-settled position of law that a rejoinder may be permitted
at any stage of the proceedings, provided no prejudice is caused
to the opposite party.
30. This Court finds that jurisdiction vested in learned
Commercial Court under Order VIII Rule 9 was not properly
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exercised, resulting in a jurisdictional error. Consequently, the
impugned order warrants interference by this Court. The writ
petition is accordingly allowed, and the impugned order is quashed
and set aside.
31. The application preferred by the petitioner for taking
rejoinder on record is, hereby allowed. Learned Commercial Court
is directed to take the said rejoinder on record.
32. In view of the submission made by the parties that the
matter is at the final stage of hearing and the undertaking given
by learned counsel for the petitioner that no new evidence shall be
introduced, the learned Commercial Court is directed to take the
rejoinder on record and thereafter proceed to hear final
arguments. The Court shall endeavour to decide the suit
expeditiously, without granting any unnecessary adjournments to
either of the parties. The suit in question shall be disposed of as
early as possible, preferably within a period of two months from
the date of this order.
33. Stay petition and pending applications, if any, also stand
disposed of.
34. No order as to costs.
(SANJEET PUROHIT),J
33-sumer/-
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