Rajasthan High Court - Jodhpur
Dwarka Prasad vs A.D.J.No.3,Jodhpur & Ors on 9 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2133 / 2006 Dwarka Prasad son of Shri Mishrilal by caste Agarwal Jindal, aged about 65 years, resident of Jindal Bhawan, Near Jalori Bari, Infront of Mahatma Gandhi Hospital, Jodhpur.
----Petitioner Versus
1. Additional District & Sessions Judge No.3, Jodhpur.
2. Mishrilal son of Late Shri Ramnarayan ji
3. Hariprasad son of Shri Mishrilal
4. Trilok Prasad son of Shri Mishri lal Respondents No.2 to 4 are by caste Agarwal, resident of Jindal Bhawan, Near Jalori Bari, Infront of Mahatma Gandhi Hospital, Jodhpur.
----Respondents _____________________________________________________ For Petitioner(s) : Mr. JK Bhaiya For Respondent(s) : Mr. Vinay Arora _____________________________________________________ JUSTICE DINESH MEHTA Judgment 09/08/2017 By way of the present writ petition, petitioner has challenged the order dated 31.03.2006 whereby his application under Order VIII Rule 9 seeking to place rejoinder on record, has been rejected.
Brief facts giving rise to the present writ petition are that the petitioner - plaintiff had filed a suit for partition and mandatory injunction.
Initially, the suit was filed only impleading respondent No.1 -
Mishri Lal as a party respondent, however, vide an order dated 19.02.2005, the application for impleadment filed by the plaintiff, seeking to implead the other respondents being respondents No.2 & 3 was allowed and the defendants No.2 & 3 were arrayed as defendants. Said newly added defendants also filed their written statements.
(2 of 3) [CW-2133/2006] During the proceedings, petitioner moved an application under Order VIII Rule 9 of the Code of Civil Procedure, seeking leave to file rejoinder to the written statement filed by them. The said application has been rejected by the learned Trial Court vide order passed on 31.03.2006. While rejecting the application, learned Trial Court has observed as under :
^^eSusa i{kdkjksa dh cgl ij euu fd;kA izfroknh la- 1 }kjk izLrqr tckcnkok ds i'pkr oknh us ,d vkosnu vkns'k 8 fu;e 9 lh ih lh ds rgr izLrqr fd;k Fkk ftlesa eSaus ;g ekuk Fkk fd lyaXu tckcqy tckc dks i<us ls ;g izdV ugha gksrk gS fd izfroknh us ,sls dksbZ rF; rF; vius tckcnkok esa fy;s gS ftudk tckc nsuk oknh ds fy, vko';d gqvk gks o ek= tckcnkok esa fd;s x;s vfHkdFkuksa dks [kqyklk djus ds fy, tckcqy tckc dks jsdMZ ij ysus dh vuqefr ugha nh xbZ Fkh ekStwnk izLrkfor tckcqy tckc yxHkx iwoZ esa izLrqr fd;s x;s tckcqy tckc ds leku gh gS ekStwnk vkosnu vkns'k 8 fu;e 9 esa Hkh oknh us vafdr fd;k gS fd oknh izfroknhx.k } kjk izLrqr fd;s x;s tckcnkok ds foxr okn inksa dk Li"V [kqyklk djrs gq, okLrfodrk dks U;k;ky; ds le{k ykuk pkgrk gS ftl dkj.k tckcqytckc nsuk vko';d gqvk gSA bl vkosnu esa oknh us ;g vafdr ugha fd;k gS fd izfroknh us ,slk dkSulk rF; vafdr fd;k gS tks oknh us vfHkdFkuksas ls vfrfjDr gS ftudk tckcqy tckc izLrqr djuk vfuok;Z gks x;k gSA mijksDr ifjfLFkfr;ksa esa ekStwnk vkosnu Hkh eatwj fd, tkus dk dksbZ vk/kkj ugha gSA vr% oknh dk vkosnu vkns'k 8 fu;e 9 lhihlh fujLr fd;k tkrk gSA** Mr. Bhaiya, learned counsel for the petitioner contended that the defendants in their written statements have taken additional pleas for which response of the plaintiff by way of rejoinder was necessary.
Challenging the above order, counsel for the petitioner submitted that it was not necessary for the plaintiff to point out each and every averment taken by the defendants, for which, filing of rejoinder was necessary. He submitted that the learned (3 of 3) [CW-2133/2006] Trial Court could have decided the petitioner's application by perusing the rejoinder, which had already been placed on record, alongwith the application.
On the other hand, Mr. Arora learned counsel for the respondents supported the judgment of the learned Trial Court and contended that there is no requirement of filing of the rejoinder.
On perusal of the record, this Court finds that the present writ petition is pending consideration for more than 10 years, before this Court, only for such a trivial issue, as to whether rejoinder is required to be taken on record or not and the proceedings before the learned Trial Court are stalled.
In the facts of the present case this Court deems it expedient and in the interest of justice to permit the rejoinder already filed by the petitioner to be taken on record.
The impugned order dated 31.03.2006 is therefore, quashed and set aside and the application under Order VIII Rule 9 filed by the petitioner is allowed. Rejoinder filed by the plaintiff shall be treated to be a part of the record.
The writ petition is allowed in above terms. Trial Court to proceed.
(DINESH MEHTA)J. Himanshu/-153