Abed Hussain and Another Vs. Thaherabanu and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1177873
CourtKarnataka High Court
Decided OnJun-15-2015
Case NumberWrit Petition Nos. 47014-47015 of 2014 (GM-CPC)
JudgeA.V. CHANDRASHEKARA
AppellantAbed Hussain and Another
RespondentThaherabanu and Others
Excerpt:
(prayer: these writ petitions are filed under articles 226 and 227 of the constitution of india, praying to set aside the impugned order dated 22.08.2014 passed in o.s.no.39/2013 by the hon'ble senior civil judge court at challkere on the application filed by the petitioners under order 6 rule 17 read with section 151 of the civil procedure of code (ia no.6) by allowing this wp in the interest of justice and equity.) 1. counsel for the petitioners is present. counsel for the respondent no.1 is absent. 2. present petitions are filed under articles 226 and 227 of the constitution of india as the petitioners who are the plaintiffs in o.s. no.39/2013 have been denied an opportunity to file an additional written statement in die nature of reply / rejoinder consequent upon the amendment of written statement. an application had been tiled under order 8 rule 9 of cpc, requesting the court to permit him to file reply or rejoinder as against the amendment carried out to the written statement. the said application came to be rejected holding that there is no provision in the cpc to file reply /rejoinder. consequent upon said rejection of the said application, an application was field under order 6 rule 17 of cpc to permit him to amend the plaint m so far as it relates to the amendment effected to the written statement. the said application has been dismissed vide order dated 22.08.2014. challenging die same, die present petitions are filed. 3. as could be seen from the records, plaintiff was constrained to file an application under order 6 rule 17 of cpc in view of the dismissal of his earlier application filed under order 8 rule 9 of cpc. there is no definition of reply or rejoinder in section 2 of cpc. but order 8 rule 9 of cpc enables the court to permit additional pleadings. if a plaint is amended defendant will be given an opportunity for filing additional written statement. in the same manner if written statement is amended, plaintiff should be given an opportunity to file an additional pleading in the nature of a reply/rejoinder, though it is not specifically defined under section 2 of cpc. 4. chapter i (3) (2) of karnataka civil rules of practice defines pleadings. " pleadings shall include plaint, written statement, memorandum of appeals, cross-objections, original petitions, applications, counter statements, replies, rejoinders and every statement setting out the case of the party in the matter to which pleadings related. 5. section 122 of cpc empowers high courts to make rules. this view has been reiterated by the hon'ble apex court in the decision reported in 2004 (p11) scc 183 and another decision reported in 1972 (1) scc 826. 6. of course rules made by high court do not govern proceedings under articles 226 and 227 of the constitution. in the light of high courts being empowered about the procedures applicable in the courts subordinate to it, the legislature in its wisdom has empowered high courts to make appropriate rules under section 122 of cpc. in the light of the same, the very order passed on ia no.5 rejecting the relief to file reply / rejoinder is opposed, to establish procedure in the additional pleadings. therefore article 227 of the constitution will have to be exercised to keep the courts subordinate to this court in bounds. ƒ 7. in this view of the matter the very order passed on. ia no.5 which is the basis for rejection of the subsequent application filed under order 6 rule 17 of cpc is set aside suo-moto by this court and petitioner is permitted to file reply / rejoinder as against the amendment carried out by the defendant to his written statement. accordingly, these writ petitions are disposed of. the reply shall be filed at the earliest in the trial court without undue delay.
Judgment:

(Prayer: These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to set aside the impugned order dated 22.08.2014 passed in O.S.No.39/2013 by the Hon'ble Senior Civil Judge court at Challkere on the application filed by the petitioners under order 6 rule 17 read with Section 151 of the Civil Procedure of Code (IA No.6) by allowing this WP in the interest of justice and equity.)

1. Counsel for the petitioners is present. Counsel for the respondent No.1 is absent.

2. Present petitions are filed under Articles 226 and 227 of the Constitution of India as the petitioners who are the plaintiffs in O.S. No.39/2013 have been denied an opportunity to file an additional written statement in die nature of reply / rejoinder consequent upon the amendment of written statement. An application had been tiled under Order 8 Rule 9 of CPC, requesting the court to permit him to file reply or rejoinder as against the amendment carried out to the written statement. The said application came to be rejected holding that there is no provision in the CPC to file reply /rejoinder. Consequent upon said rejection of the said application, an application was field under Order 6 Rule 17 of CPC to permit him to amend the plaint m so far as it relates to the amendment effected to the written statement. The said application has been dismissed vide order dated 22.08.2014. Challenging die same, die present petitions are filed.

3. As could be seen from the records, plaintiff was constrained to file an application under Order 6 Rule 17 of CPC in view of the dismissal of his earlier application filed under Order 8 Rule 9 of CPC. There is no definition of Reply or Rejoinder in Section 2 of CPC. But Order 8 Rule 9 of CPC enables the court to permit additional pleadings. If a plaint is amended defendant will be given an opportunity for filing additional written statement. In the same manner if written statement is amended, plaintiff should be given an opportunity to file an additional pleading in the nature of a reply/rejoinder, though it is not specifically defined under Section 2 of CPC.

4. Chapter I (3) (2) of Karnataka Civil Rules of Practice defines pleadings. " Pleadings shall include plaint, written statement, memorandum of appeals, cross-objections, original petitions, applications, counter statements, replies, rejoinders and every statement setting out the case of the party in the matter to which pleadings related.

5. Section 122 of CPC empowers High Courts to make rules. This view has been reiterated by the Hon'ble Apex Court in the decision reported in 2004 (p11) SCC 183 and another decision reported in 1972 (1) SCC 826.

6. Of course rules made by High Court do not govern proceedings under Articles 226 and 227 of the Constitution. In the light of High Courts being empowered about the procedures applicable in the courts subordinate to it, the legislature in its wisdom has empowered High Courts to make appropriate rules under Section 122 of CPC. In the light of the same, the very order passed on IA No.5 rejecting the relief to file reply / rejoinder is opposed, to establish procedure in the additional pleadings. Therefore Article 227 of the Constitution will have to be exercised to keep the courts subordinate to this Court in bounds. ƒ

7. In this view of the matter the very order passed on. IA No.5 which is the basis for rejection of the subsequent application filed under order 6 Rule 17 of CPC is set aside Suo-moto by this court and petitioner is permitted to file reply / rejoinder as against the amendment carried out by the defendant to his written statement. Accordingly, these writ petitions are disposed of.

The reply shall be filed at the earliest in the trial court without undue delay.