Kerala High Court
Sunil And Vasanth Architects And ... vs Tata Ceramics Ltd. on 12 November, 1998
Equivalent citations: AIR 1999 KERALA 88, (1999) ILR(KER) 1 KER 875, (1999) 2 CIVILCOURTC 77, (1999) 1 KER LT 61, (1999) 2 LANDLR 341, (1999) 2 CURCC 368
ORDER S. Sankarasubban, J.
1. This revision petition is filed by the defendant in O.S. 407/1996 on the file of the I Additional Sub Court, Ernakulam. The suit was filed by the respondent-plaintiff for passing a decree against the defendant for a sum of Rs. 93,06,869/- by way of compensation for alleged loss and damages caused to the plaintiff on account of the sinking of the Petroleum Gas Bullet Foundations as a result of the breach of contract and negligence of the defendant in the matter of design and supervision of the construction of Liquified Petroleum Gas Bullets Foundations. The defendant filed a written statement on 7-12-1996, wherein it was contended that the suit is purely experimental in nature and has been filed without bona fides and with a malicious intention to destroy the professional reputation of the defendant.
2. The defendant denied all material allegations in the plaint and prayed for dismissal of the suit. Thereafter the plaintiff filed a replication on 14-3-1997. The defendant filed I.A. 2922/1997 to reject the replication filed by the plaintiff. That application was allowed and the replication was rejected. The Court took the view that if the plaintiff wants to bring out a new fact, the plaintiff should amend the pleadings. Further it was said that a replication cannot be filed without the leave of the Court. Against the said order, the respondent preferred C.R.P.474/1998. Though that C.R.P. was dismissed, it was observed that it is open to the present respondent to pursue his leave application and after gelling the leave, the replication can be presented. Thereafter the respondent filed I.A. 1852/1998 praying for leave to file replication to the written statement. It was stated in the affidavit supporting the petition for replication that a replication became necessary since the written statement contained incorrect averments, factual errors and misleading statements. The Court below heard the 1.A. and granted leave to file replication. It is against that the present revision is filed.
3. Learned Senior Counsel Sri. P. Balagangadhara Menon appearing for the petitioner contended that Order 8, Rule 9 does not envisage a replication. The learned counsel relied on a decision of the learned single Judge reported in Sujir Keshav v. Sujir Ganesh Nayak, 1991 (2) KLJ 37 and also a decision of the Bombay High Court in Chimawa Rachaya v. Gangawa Gangadharaya, AIR 1929 Bom 413. Order 8, Rule 9 deals with subsequent pleadings. It states as follows :--
"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 lime for presenting the same."
In the decision reported in the case of Kochu-kesavan Nair v. Gouri Amma, 1967 KLT 257. His Lordship Justice M. Madhavan Nair considered the question whether replication can he filed by the plaintiff under Order 8, Rule 9. It was held as follows :--
"The Code of Civil Procedure far from pinning down the plaintiff to the plaint and the defendant to the written statement docs contemplate further pleadings. It is lawful for the plaintiff to file a replication to add to his pleas already made in the plaint and the only condition therein is leave of the Court. ..... As the replication in this case had been accepted by the Court of trial, the leave necessary therefor must be assumed to have been given by it."
It was observed in that case that the word "replication" is the plaintiff's answer to the defendant's plea and "rejoinder" is the defendant's answer to the plaintiff's replication. It is lawful to the plaintiff to file a replication to add to his pleas already made in the plaint and the only condition thereon is the leave of the Court. Even in cases that require leave, it is open to the Court to grant leave with or without conditions. His Lordship, hence, did not go into the decision of the Bombay High Court in AIR 1929 Bom 413 as, according to the learned Judge, Order 8, Rule 9 takes in a replication also. Learned counsel for the petitioner relied on certain observations made by K.P. Balanarayana Marar, J. in the decision reported in 1991 (2) KLJ 37. His Lordship relying on AIR 1929 Bom 413 took the view that replication was not contemplated. But, His Lordship found that in certain parts of the State replications were being filed. Hence, His Lordship hoped that the method of filing of replication will he stopped. The decision rendered in 1991 (2) KLJ 37 was reversed by the Supreme Court in Sujir Keshav Nayak v. Sujir Ganesh Nayak, 1992(1) KLT 283 : (AIR 1992 SC 1526). Of course, the argument that was made before the Supreme Court was only with regard to the valuation of the suit. The Supreme Court did not express any opinion on the expression made, by the learned Judge regarding replication. But, it is seen from the judgment of the Supreme Court that the Supreme Court itself had relied on certain portions of the replication. Further, I am of the view that the practice of filing replication exists in certain parts of the Slate, It is meant only for denying or clarifying the facts stated in the written statement. Fresh cause of action or fresh case is not brought up by filing replication. I understand from the copy of the replication that it is mainly a clarification regarding the facts. The decision of Madhavan Nair, J. has been there since 1967. Hence. I fully agree with that decision and, therefore, I do not think it necessary to refer to the question to a Division Bench. Further, the decision in 1967 KLT 257 was brought to the notice of Balanarayana Marar, J. His Lordship has not dissented from the above decision. Of course, the learned judge has slated that the practice of filing replication should be stopped.
4. Thus, the plaintiff is allowed to file a replication, provided he gets leave of the Court. In this case, the Court has granted leave. The application filed for leave shows that the replication was necessitated because certain incorrect statements were made in the written statement. In the above view of the matter. I do not find any infirmity in the order of the Court below. It is upheld. The C.R.P. is dismissed.