Andhra HC (Pre-Telangana)
Punuru Vijaya Lakshmi vs Dr. Punuru Venkata Reddy on 4 July, 2000
Equivalent citations: 2000(5)ALD108, 2000(4)ALT509
ORDER
1. This revision petition is against the order of the Senior Civil Judge, Kavali, dated 17-7-1998 dismissing IA No.232 of 1998 in OS No.56 of 1997 fifed by the petitioner seeking leave of the Court to file a rejoinder.
2. The petitioner herein is the wife of the respondent herein. She filed the said suit against the respondent-defendant for declaration of her title to the plaint schedule house situated in Kavali Town and for recovery of possession of the same.
3. The case of the petitioner-plaintiff, as set forth in the plaint, is that the plaint schedule house was purchased by her from one Dr. N. Venkata Lakshmi Narasimha Rao under a registered sale deed dated 26-8-1974 for a total consideration of Rs.16,000/-. Immediately thereafter she was put in possession of the said property. Subsequently, her husband (respondent-defendant) requested her to permit him to run his hospital in the plaint schedule house and she agreed for the same. The respondent-defendant was thus inducted into possession of the plaint schedule house on her permission. Subsequently, when the need arose for her, she made a request to the respondent to vacate the premises and deliver possession of the same. Inspite of her repeated personal requests and the requests made through her close relatives, the respondent did not oblige. She then issued a legal notice to the respondent on 27-10-1997 demanding delivery of vacant possession of the plaint schedule house. Having received the said notice, the respondent kept quiet without even issuing a formal reply. Hence, the suit.
4. The respondent-defendant filed an elaborate written statement not only denying the plaint averments, but also explaining, in detail, that how he fell in love with one Dr. Sujata in the year 1970, that how he was forced to marry the petitioner-plaintiff, who is no other than his sister's daughter, and that how even after the marriage he and his love-Dr. Sujatha started to live together from September, 1973 onwards. He also specifically pleaded that the plaint schedule house was purchased by him with his own funds, but the sale deed was mischievously taken in the name of the petitioner-plaintiff by his father and elder brother. He states that since the purchase of the suit schedule house, he is running his Nursing Home there and made lot of improvements to it by investing huge sums. He also made several other statements, in detail, regarding the strained relationship between him and the petitioner-plaintiff.
5. After filing of the said written statement, the petitioner-plaintiff filed IA No.232 of 1998 seeking leave of the Court to file a rejoinder denying several allegations made by the respondent-defendant in his written statement and also explaining how she had raised funds and purchased the plaint scheduled house. The learned Senior Civil Judge dismissed the said IA, holding thus:
".....But on perusal of the averments in the written statement filed by the respondent it is quite clear that the respondent never pleaded any set-off of counter-claim. Therefore, the percent application is not maintainable under Order 8, Rule 8 CPC."
The learned Senior Civil Judge also observed that:
"The petitioner cannot be permitted to plead new facts quite inconsistently with the original pleadings."
It is this order that is assailed in this revision petition.
6. Counsel for the revision petitioner submits that the learned Senior Civil Judge grossly erred in rejecting the application as not maintainable under Order 8, Rule 8 CPC overlooking the fact that in essence the application is one under Order 8, Rule 9 CPC - which clearly permits the parties to file subsequent pleadings with the leave of the Court, that amounts to exercising his jurisdiction with material irregularity - and, therefore, the impugned order is liable to be set aside.
7. Counsel for the respondent, however, strongly disputed the aforesaid contention.
8. In order to appreciate the aforesaid contentions, it is appropriate now to refer to Order 8, Rule 8 and 9 CPC :
Order 8, Rule 8: New ground of defence.
"Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off or counter - claim may be raised by the defendant or plaintiff, as the case may be, in his written statement."
Order 8, Rule 9: Subsequent pleadings.
"No pleading subsequent to the written statement of a defendant other than by way of defence to a 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 for presenting the same."
9. A close reading of the aforesaid provisions makes it abundantly clear that the scope of Order 8, Rule 9 CPC is much wider than Rule 8. Order 8, Rule 8 CPC (which deals with new ground of defence) permits either party to the suit to raise only a new ground of defence, which has arisen subsequent to the filing of the suit or filing of the written statement (as the case may be) claiming set-off or counterclaim. Whereas, Order 8, Rule 9 CPC not only permits filing of subsequent pleadings, as a matter right, in cases where the defendant sets up a counter-claim or pleads set-off in his written statement, but also in other cases with the leave of the Court. Thus, under Order 8, Rule 9 CPC a plaintiff can file a rejoinder with the leave of the Court even in cases where the defendant has not pleaded set-off or a counter-claim. This position is now well settled.
10. As already noted herein above, the respondent-defendant filed an elaborate written statement raising several pleas. A perusal of the same would clearly show that the petitioner-plaintiff is justified in seeking permission of the Court to file a rejoinder and that is what she had done by filing the said Interlocutory Application. It is true that she quoted wrongly Order 8, Rule 8 CPC instead of Order 8, Rule 9 CPC in her application, but that is no ground for the learned Senior Civil Judge not to consider her application under Order 8, Rule 9 CPC. It is now well settled that quoting a wrong provision of law cannot be a ground to refuse the relief, which can otherwise be granted in law.
11. Inspite of the aforesaid clear legal position, the Senior Civil Judge did not consider and allow the application treating it as one filed under Order 8, Rule 9 CPC, but dismissed the same on the ground that it is not maintainable as the respondent-defendant has not pleaded a set-off or counter-claim in the written statement. This, in my considered view, is an apparent error.
12. The observation of the learned Senior Civil Judge that "the petitioner cannot be permitted to plead new facts quite inconsistently with the original pleadings" is also, unjustified. A perusal of the proposed rejoinder clearly shows that the petitioner is not pleading any inconsistent new facts, but is explaining her case, may be with a little more elaboration. In my considered view, she is entitled to do so, particularly, in view of the fact that the respondent-defendant kept quiet without giving any reply to her legal notice dated 27-10-1997 and came up with several pleas in his written statement to deny the petitioner's title to the plaint schedule house. Time and again Courts have held that leave to file a rejoinder shall not be rejected simply because the plaintiff wanted to explain his/her case in the proposed rejoinder and wanted to rebut the allegations made by the defendant in the written statement, where no prejudice is caused to the defendant. See the decision of this Court in Sri Gavi Matt Samsthanam, Uravakonda v. Danda Narayana Swamy and others, .
13. In the facts and circumstances of this case, I find that no prejudice would be caused to the respondent-defendant if the petitioner-plaintiff is permitted to file a rejoinder.
14. For the aforementioned reasons, I am of the considered view that the learned Senior Civil Judget ought not to have refused leave to the petitioner-plaintiff to file a rejoinder. The Counsel for the petitioner is, therefore, right in his submission that the learned Senior Civil Judge exercised his jurisdiction with material irregularity. The impugned order is, therefore, liable to be set aside and is accordingly set aside. IA No.232 of 1998 in OS No.56 of 1997 is allowed.
15. The civil revision petition is accordingly allowed. No costs.