Rajasthan High Court - Jaipur
Ishwar Lal And Anr. vs Ashok And Anr. on 3 March, 1998
Equivalent citations: 1998(3)WLC223, 1998(1)WLN236
JUDGMENT Shiv Kumar Sharma, J.
1. Instant revision impugns the order dated Nov. 1, 1996, of the learned Civil Judge (Junior Division) Jodhpur Dist. Jodhpur, whereby the application of the plaintiff-petitioners (for short the plaintiff) moved under Order 8 Rule 9 CPC was dismissed.
2. Brief resume of the facts is that in the suit instituted by the plaintiff seeking permanent injunction, the defendant No. 1 Ashok had filed written statement on August 26, 1994. At that time the service on State of Rajasthan was not effected. The State of Rajasthan filed written statement on September 16. 1996. Thereafter the plaintiffs moved an application under Order 8 Rule 9 CPC seeking leave of the Trial Court to file rejoinder. The learned Trial Court declined the leave and rejected the application.
3. Mr. A.L. Chopra made a scathing criticism of the impugned order and contended that it was necessary to file rejoinder of the specific pleas pleaded by the State of Rajasthan in the written statement. In declining the permission the learned Trial Court has committed jurisdictional error.
4. On the other hand. Mr. Mishrilal Chhangani, learned Counsel appearing for the defendant No. 1 vehemently canvassed that the application was filed in order to fill up the lacunae of the plaint. The written statement of the State of Rajasthan is virtually verbatim copy of the written statement of the defendant No. 1. When the plaintiffs did not choose to file rejoinder of the written statement filed by the defendant No. 1, he could not have been permitted to file it now.
5. Reliance was placed on Veerasekhara Varmarayar v. Amirthavalliammal and Ors. (AIR 1975 Madras 51), Velji Bharmal v. Sam Poonja and Anr. (AIR 1952 Kutch 27) and Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur and Ors. (AIR 1992 Delhi 162).
6. I have given my anxious considerations to the rival submissions and carefully perused the impugned order and scrutinise the material on record.
7. Admittedly the defendant No. 1 had filed written statement on August 26, 1994 and thereafter no leave was sought by the plaintiffs to file rejoinder. It is only after September 16, 1996 when the State of Rajasthan submitted written statement the plaintiffs had moved an application under Order 8 Rule 9 CPC. A perusal of the written statements filed by the defendant No. 1 as well as the State of Rajasthan demonstrates that both these written statements are identical in nature. In the application moved under Order 8 Rule 9 CPC by the plaintiffs on September 24, 1996, it has not been explained as to why the plaintiffs did not choose to file rejoinder of the written statement of the defendant No. 1.
8. Veerasekhara Varmarayar's case (supra) was the case where the Division Bench of the Madras High Court indicated thus-
The law does not compel the plaintiff to file a rejoinder challenging the allegation made in the written statement. The failure to file a rejoinder cannot be treated as an admission of the plea in the written statement.
9. In Velji Bharmal v. Sam Poonja and Anr. (supra), it was indicated that-
In deciding the question whether leave should be granted or not the Courts take into consideration delay that has taken place in raising the contentions proposed to be raised by a supplementary written statement and the reasons why those contentions were not raised before.
10. In Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur (supra), it was held that "the party applying under Order 8 Rule 9 has to provide cogent reasons for permission to file additional written statement. He cannot claim it as a matter of right. And the Court, in exercise of its discretion, may or may not grant leave to present a fresh pleading."
11. The legal position from the above discussions emerges as under:
(a) Granting leave under Order 8 Rule 9 CPC is a matter of judicial discretion vested in the Trial Court.
(b) plaintiff has to assign cogent reasons for seeking permission to file rejoinder to the written statement.
(c) If no rejoinder is filed by the plaintiff it does not amount to be an admission of the plea in the written statement.
(d) While deciding the question whether leave should be granted or not the Trial Court shall take into consideration the delay if any that has taken place in filing the application seeking leave to file rejoinder of the written statement.
(Emphasis Supplied)
12. In the ultimate analysis, I am unable to pursuade myself to agree with the submission made by the learned Counsel for the plaintiffs. I see no jurisdictional error in the impugned order and if it is allowed to stand, it would not occasion failure of justice.
13. Resultantly, the revision fails and is hereby dismissed. The report of the case be sent back forthwith. The parties are directed to appear before the learned Trial Court on March 26, 1998.