Arbind Kumar vs Smt. Madhulika Nandkuliar

The petitioner, plaintiff in Title Suit No. 126 of 2010, is aggrieved of order dated 19.05.2011 by which his application under Order VIII Rule 9 CPC

seeking leave of the Court to file replication has been declined.Â

Stand taken by the petitioner is that to clarify certain facts which have been pleaded by the defendant in her written statement he is entitled to file

replication. Another plea urged on behalf of the petitioner is that the defendant in her statement has suppressed certain facts and made false

statements which has necessitated replication to the plaint.Â

Title Suit No. 126 of 2010 was instituted for a decree for specific performance of contract. The plaintiff has pleaded that the defendant took a

friendly loan of   Rs. 2,00,000/- from him which was paid to her through four demand drafts all dated 10.02.2005 drawn on Punjab and Sindh Bank,

Ranchi. To repay this amount the defendant agreed to sale her landed property measuring about 4 kathas with house thereon for consideration of

Rs. 7,00,000/-. An agreement to sale was thereafter executed by the parties on 15.05.2009. The plaintiff has further pleaded that he paid Rs.

4,00,000/- in cash on 15.05.2009, that is, when the agreement was executed, and thus he has paid Rs. 6,00,000/- to the defendant. However, when the

defendant did not execute the sale deed within 10 months as stipulated in the agreement he issued a legal notice to her on 23.02.2010. In her written

statement the defendant has pleaded that she has purchased 4 kathas land in the village â€" Kadru, District â€" Ranchi but no construction has been

made thereon and, in fact, she has no house or quarter at Ranchi. After her marriage she is residing at  Gaya in the house of her husband

â€" Dr. Prasant Nandkuliar and her maiden name was Madhulika Narayan. In these facts the defendant has disputed service of notice upon her and

her address disclosed by the plaintiff in the plaint. She has claimed that only after a notice was published in the daily newspaper she came to know

about institution of a suit by the plaintiff. It was further pleaded by her that she and her sister-in-law namely, Dolly Nandkeoliyar who also owns 13

decimals land out of Plot No. 1939A situated at  village â€" Baraghagra, District â€" Ranchi and who is married to brother of her husband,

executed two separate agreements for sale of 4 kathas land each to Md. Shamim who ultimately could not make payment and consequently the

aforesaid agreement to sale dated 02.08.2003 executed   by her and the agreement to sale executed by her sister-in-law â€

Dolly Nandkeoliyar were cancelled and they executed a registered power of attorney in favour  of Chitta Ranjan Prasad Verma resident of Mohalla

â€" Shamir Takiya,  District â€" Gaya. It was only after they received an Advocate’s notice on 15.04.2009 she could know that the said

Md. Shamim has executed an agreement for sale dated 13.01.2005 with respect to 4 kathas land belonging to her with Smt. Lata Devi who is wife of

the plaintiff. The alleged payment made by the plaintiff has also been denied and disputed by the defendant. Â

In the above facts a replication dated 04.01.2011  accompanied with an application under Order VIII  Rule 9 CPC was filed by

the plaintiff.Â

This application has been rejected by the trial Judge on the ground that it would change the cause of action. Â

Order VIII Rule 9 CPC reads as under :

 “9. Subsequent pleadingsâ€" No pleading subsequent to the written statement of a defendant other than by way of defence to 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 of not more than thirty

days for presented the same.â€​Â

Order VI CPC deals with pleadings generally. It provides forms of pleading, particulars and further or better statement to be given where

necessary, verification of pleadings, striking out pleadings, amendment of pleadings etc. Order VI Rule 1 CPC clarifies that plaint and written

statement shall constitute “pleadings in the suitâ€. Order VII deals with plaint and Order VIII deals with written statement.  It is in this context

that Order VIII Rule 9 CPC provides that no pleading subsequent to the written statement of a defendant shall be presented. Exception to this

restriction has, however, been carved out in this rule itself. It provides that when a set-off or a counter-claim has been raised by the defendant in his

written statement, the plaintiff may be permitted to file a written statement or additional written statement, however, not without leave of the Court

and only upon such terms as the Court thinks fit. Order VIII Rule 6 provides that when a defendant claims set-off against the plaintiff’s

demand, he may at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing particulars of

the debt sought to be set-off. Sub-rule 2 to Rule 6 provides that the written statement now shall have the same effect as a plaint in a cross-suit and

sub-rule 3 provides that the rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Order

VIII Rule 6 A deals with counter-claim. It provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up,

by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the

plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for submitting his

defence has expired. A similar procedure follows when a counter-claim is raised by the defendant as in the case of a claim of set-off.

In the context of the aforesaid procedures prescribed under Rule 6 and Rule 6-A to Order VIII CPC when the expression “except by the leave

of Court and upon such terms as the Court thinks fit†as occurring in Rule 9 is examined it becomes clear that subsequent pleadings as envisaged

under Rule 9 must remain confined to filing of written statement or additional written statement in cases where the defendant has claimed a set-off or

raised a           counter-claim in his written statement. Powers of the Court under Rule 9 to permit subsequent pleadings

cannot be exercised to permit a party to add new facts in the garb of clarification or elaboration of facts. A fact which a party has failed to aver in

the pleadings, subject to limitations under Order VI Rule 17 CPC, can be permitted to be incorporated by way of amendment provided such fact is

necessary for resolving the real controversy involved in the suit, but not through replication. Under Order VI Rule 17 CPC amendment in the pleadings

for clarification or elaboration of a fact already pleaded can be permitted, however, powers under Order VIII Rule 9 CPC cannot be exercised to

permit the plaintiff to file replication for clarification or elaboration of a fact. Â

In the written statement the defendant has disclosed host of new facts which were not pleaded by the plaintiff. It was in fact plaintiff who has

suppressed material facts and not the defendant. On the ground that the defendant has suppressed facts and pleaded false facts, in my opinion, even

amendment in the plaint is not permissible, and definitely powers under Order VIII  Rule 9 CPC cannot be exercised. The procedure

prescribed under the Code cannot be altered, amended or modified by the court and the court cannot provide an altogether new procedure for trial of

a suit which is not prescribed under the Code. Except plaint and written statement, there cannot be a third kind of pleadings in a suit. In fact, the

Code does not talk of replication.

In the above facts, finding no infirmity in the impugned order dated 19.05.2011 the writ petition is dismissed.Â