Mr Glen Fredric Picardo vs Mr Rodney Picardo Since Deceased By Lrs on 30 August, 2010

[Cites 1, Cited by 19]

Karnataka High Court

Mr Glen Fredric Picardo vs Mr Rodney Picardo Since Deceased By Lrs on 30 August, 2010

Equivalent citations: AIR 2011 KARNATAKA 13, 2011 AIR CC 61 (KAR), 2010 (4) AIR KANT HCR 476, (2011) 2 ICC 578, (2011) 97 ALLINDCAS 803 (KAR), (2010) 4 KCCR 3014, (2011) 1 CIVLJ 926

Bench: A.N.Venugopala Gowda

2. Mr. Edward Raj Picardo,
Aged about 39 years,
S/o. late Peter Vincent Picardo,
165, 4"' Main, Vyalikavai,
Bangalore -~ 560 003.

(By Sri Kanikaraj 3. Adv. for R3. (a);~~ 
Sri G.Kiran, Adv. for R2) 1

.....R,i_¥f_Sui?(1i.*\i:iZ)Ei\i"i'_S --< .. 

This writ petition is riledunder.Ariicies,.22s"8§ 2::7"'oi€'<

the Constitution of India, pray'i'n.g totiuasti t-ne"'.._irnpugned 

order vide Annexure - A déite'd 29.3".'20'10" passed on
I.A.No.7 and aiiow the app.ii_cati'on I.A".'iio..7,,,.i'ﬁled in
O.S.No.2900/2002 on '_the fiie ofitiie, 'I~,AddI. City Civil 8:.
Sessions Judge, Bangaio-r_ei--. ivCityf.,i'p.ermitting the
petitioner/plaintiff to fiie'-the."refpiicatiiciyyejoinder to the
written statement,  " I ~ 

This on for...pr'eii.rriinary hearing in 'B'
group this day,-the Court-Tread-e..the,following.

   ii-jg Roea

PVetit'ionei~. a suit for partition and

separate i'pos'sess~ion'v_  20.04.2002 against the

"V.__respond»ent3.A 1éf""'d'e'fendant having died, his legai

 "have been brought on record. The iegai

re"pr_esentati$;ies of 15' defendant have filed written

7._statem~ent;. on 17.10.2008, resting their case on a Will, said

A '~:ifto:iiave been executed by the mother of the petitioner in

 fai\ti'OE.ii' of the deceased 15' defendant. The petitioner filed

/'

/"



statement but afso for clarifying the facts and by hol__ding

otherwise, the trial court has committed irrationaliityitarsvd

iffegality.

3. Sri 3. Kanikaraj, fearniad couynsef 

the respondent No.1 on theroather"'h_a'nd co,nt'eunde'd that,

Order VIII Rule 9 does not corn'p.l_ete a to the written statement of the defendatnt frforn. :the__pla~--i.ntiff. contends that, by obtaining Eeaveﬂof the'__'cr}tur't~,.V.a~t.Ii,t,jri--tten statement or an additiona'§:j,..:.1writt--eniLstatemiert"can be filed by the pfaintiff, if to the suit, a set--of.

or cou:1d't'e'r§cla:i,'s3\] notffotherwlilsve. He contends that, 'in the defent:e~ fiVled.,Vto'..tjthle'instant suit, there is nefther a set- of nor. any c'ou,_nte.r?cla'i-mt"and hence the prayer in LA No.7 «_beino°m,i-scolnceivedwas rightly rejected by the trial court. written statement filed by the Eegaf V -- representatiires of the 15' defendant, it was contended the mother of the plaintiff has executed a Wili in .' msipett of item No.1 of the suit schedule 'A' property in T "favour of defendant No.1. In the replication sought to be k' /i flied along with LA No.7, the piaintiff has attempted to deny the Wiil. The trial court has considered the reported at ILR 2005 Kar 2089 (supra) and _ when once the defendant has fiied the written:fstatement,' there is no provision under iaw to filea jre'p'li"c.ation~rto the written statement and the said.decisi'o_n"has n,o"V*arVpp'iicat'ion'.

5. In the case. reported,"fat'Il.R 2005.. 2089, petitioner had filed the res'p.ondents for the relief of specific,perfornian'ce:V,to_:'e>tecute register a sale deed and :_.to* :pQ_Ss.ess'ion_t of the suit scheduie propert_:'y,"VlV W itiled separate written statements.'-- ieave of the triai court to file a,.rejoinE:ie_r by¥niAi'ng""an appiication under Order VIII 'sV"'r.Rale..ﬁ9 i:e.ad= with llséctian 15: of c.r=.c. The trial court on ,.considre;rat_i%on' ~o_f"_jthe rnateriais on record opined that, leave to"f_iie replication cannot be granted. Said order was

3..«.._'_''-.questioned in this court. It was held that, the Civil V"l:l§fro_ceAt€ure Code for from pinning down the plaintiff to the Dfaint and defendant to the written statement does :'v F' contemplate further pleading. It was heid that,_..__Et is permissible to the plaintiff to file a repiication to a--cl"ci--t:'t_"e.:his pieas already made in the plaint, subject to the ' that ieave is granted by the courttandytheihtsavfﬁeiy for denying or clarifying the facts stated 2in_:"i:E.1"e statement. Directing acceptance of"-thevre'piic'at:'on "to a " ' limited extent, the writ:_.petEtioAn..«vtas. citsposed -of.

6. Having heard t_he."__VVie:ar-n~ed'"~:'..C0't:nsei on both sides and ha:ving_:f'peri;i_se:i the" ihrriiteevpetition papers, the point for cdnsidieratidin» r it t .' Ruiehwév of C. P.C provides for ﬁ'.'i_ng' of~repiy'_hy.. plaintiff to the written statenjlent of a' a¢'fIefei_;»dant when there is neither ; av set--or, nx'0'r"'a V'counter-claim putforth in the .. °*wr:'tte-'7. staterhehvt?

'--u AIQ}~.,_"E"df-answer the point, it is necessary to notice the"~..proyisEori tender Rule 9 of Order VIII of C.P.C, 1908, "which reads as foflows:

_"Subsequent pleadings --- No pieading subsequent to the written statement of a defendant other than '4 by way of defence to a set--of (or counter--claim}..__shall be presented except by the Eeave of the C_ourt._<l_and upon such terms as the Court thinks th.e~~s% Court may at any time require a written 's.taterne'nt V' additional written statement..from'an_y pa.rjtie's_ it and fix a time for presentingV'».the_rsiarneﬂl

8. Rute 1 under VI' of " V "Pleading" to mean "plaint or Vwrittren'"statehmen.i:,"li{ule 2 is about the pleading facts and not evidence. Rule_:4__is wit'h":pa.rticuEars to be given where provides that every pleading. and his pleader. Rule 15 is rega'i*:fj':-tovlerdicatioln of pleadings. Rule 17 is with reg'ard:_'_4Vof pleadings. The provisions undgr=:_if"'Order are with regard to pEaint and the ,doc.un1ents.irAei.i,ed on in the plaint. The provisions under 1"O.rdle_r;lviiifiareﬁwyitth regard to the written statement, set--of _ or Count-er--cl'aim.

it A plain reading of Rule 9 under Order VIII does not provide for a reply by the plaintiff, subsequent to the /7 written statement of a defendant, other than by way of defence to a set~off or counter-ciaim, with the ieave7o:f'the court and upon such terms as the court__;'_"t"§1i'n.i_<:s._i_:'fi.t:."«_ However, the said provision enabies the conr-t,. upon a party to fiie a written statementgor:a.nzfadditi.on--ai'writteirzf statement within a fixed time; if, inV"t_h'e writt»en'VVAs'tatement fiied by the defendant there he orcounter. ciaim, the plaintiff position of a defendant insofar as to either the set~off or cou:_ite'rA;~..ci"'airn--y.A i<_é;.r'eCI"*:'f*'i' granted ieave to file a written of iegisiature in enacting RuiefV9'.is..:to,_rneet.. the said situation and not to enabie the .plaintiff_ to.'.fi»*ie"su4bsequent pleading by way of a replication.

3 case of Mohammed Abdui Gafoor and Others V_s."'iié§:ddappayachari and another, reported in ILR ".1980 ("1V')_A':..'<ar 248, piaintiff instituted a suit for declaration possession. Defendants fiied written statement and resisted the suit. Issues were raised. The triai court K I/"

ri decreed the suit, which when appealed was affirmed and thereafter second appeal was filed. One of the_d;=_o'irn'ts raised for consideration was:

"Whether the learned Munsiff could ralse.l.:fl?.e 'issue of res judicata, which was ' :fovered:_':

pleadings, mainly relying on the statementigfiled' ._ by the plaintiff without;th'e,permisslon_ ofvtf3{e~Co1:§*t?" r L' Noticing Rule 9,. of Ord-arm-Vl'II_ C.Pﬂ.'C"-..relating to subsequent pleadings, itilas bee§n:vhe:id'Il_asLfollows: "I2. Thu':=;:,l'i;f_, in ithewtfittetixmstatement, the defendant sets ontv a§:r'éountor1:.olain1 tori' olalrns a set~off, the plaintiff .a'"right'rl:lof reply ltolthe written statement and the pleadings".

11.' the c"ase4Bl.N.Padmanabhiah Vs. M/s.Sri Jayarjéuragarajender Oil Mills, Davanagere and Others, 'V;+ep§'r':ed'll:';;;@961 Mys.L..J 904, a Division Bench of this scam: %has7ileldv follows:

"The. refﬂy statement cannot be said to be a part of the plleadings. The defendants had no opportunity to meet " it "the allegations contained in the reply statement".

\s/ I 10 It has been pointed out that, defendant will have no chance to meet the case made 'out in the repiy' statement and, as such, the reply statement has to be excludedtfromé the pleadings.

12. While deciding the case'*"re.ported"_,ati.--VIL¥i' Kar 2089, attention of Learned sin'gVle:i.j'ut'dVgel"has.not drawn to attention of the said'-i!)eivisii'on__ :3eVnci1""J:ii'dgl"nent " V and also the decision ,.in they---~case "o..f_ Mohammad Abdul Gafoor (supra). The raltioxot' reported at ILR 2005 i<ai--,2os9 fjéingvilj,not-j«n_ contolrmity with the statutorylllproyisionfiigeandtiie tw'o"'decisio.ns noticed siipra, with dtierespect, to follow the said decision. _13. in _r'ny_opir'iioVn"'the pleadings would be compiete i--..witn.j.the..,fiiing ofltheplaint, written statement or additionai a_i_w'rit_t'en::stat4e'm:ent to a set-off or any counter--claim with theieave court. Any addition or deletion to the said "v.,,pleaciir:gs':.can be by way of an amendment being permitted §"_E.indie'ij« Rule 17 of Order VI C.P.C and not by granting ieave to} file replication. For amendment of pleadings, the /"

r.

ll permission of the court is required to be obtained, as is clear from the words contained in Rule 17' of C.P.C, In the said view of the matter, the right in recording the finding that, Wl'l'ei'i--:i:i3i1'C£i-i '-the defendant places his defence lay -.a* statement, there is no provision.._to fi'ie._a replri'cat§on_toilthe written statement.

14. The impugned.i.'ord-er";'is irrational nor illegal. There :.is=no_-.procedural-.,irni:jropri'elty and hence no interference'in:_exerci.se"of..su«p_érvi'sory' jurisdiction is called for.

Inthe result, oetition is devoid of merit and sha'll.;'sta,nd VdismVi'ssed'. However, keeping in view the between the parties, there shall be no order as "to "costs; ' V V sdiéﬂ Eudqe

Unlock Advanced Research with PRISMAI

Karnataka High Court