Kalu Masar vs State Of Rajasthan And Ors

Issue notice to the respondents.

Mr. Digvijay Singh, Additional Advocate General, accepts notice on behalf of respondents.

With the consent of learned counsel for the parties, the matter is heard finally at this stage.

By the instant writ petition under Article 226 & 227 of the Constitution of India, petitioner-plaintiff has challenged order dated 18.03.2019 (Annex.12) passed by Additional Civil Judge, Dungarpur (for short, 'learned Court below') rejecting prayer of the petitioner for filing subsequent pleadings in an application under Order 39 Rule 1 & 2 CPC.

The facts, in brief, are that petitioner-plaintiff filed a suit for perpetual injunction and along with the suit also filed an application under Order 39 Rule 1 & 2 CPC praying therein temporary injunction pendent lite. The application for temporary injunction is contested by respondents by filing its reply. After filing reply, petitioner made endeavour to file subsequent pleadings by invoking Order 8 Rule 9 CPC. Learned Court below, after hearing rival parties, by the order impugned declined the prayer of the petitioner.

I have heard learned counsel for the parties.

While it is true that subsequent pleadings are permissible under Order 8 Rule 9 CPC but then except for defence of set off of counter-claim by the defendant, such subsequent pleadings are required to be filed with leave of the Court. The legislature has also conferred a discretion on the Court to allow subsequent pleadings upon such terms as it thinks fit.

Be that as it may, the discretionary power conferred on the Court is not unfettered and in appropriate cases it can very well permit subsequent pleadings. It is also noteworthy that by virtue of Section 141 CPC, the provisions of Order 8 Rule 9 CPC are also applicable in case of miscellaneous proceedings including the application for temporary injunction. In appropriate cases, where some new facts emerge out from the reply, it is required of the plaintiff to file subsequent pleadings, which can facilitate strengthening of his case and further during trial in the main suit it may permit the party to effectively cross-examine the witness at an appropriate stage. At times, sans subsequent pleadings, the plaintiff can be precluded from cross-examining the witness on a particular issue. Thus if any fact do not find mention in the plaint and there is no subsequent pleading to counter the averments made in the written statement there is every likelihood of prejudice to the cause of the plaintiff.

Learned counsel appearing for the State has though opposed the petition but has submitted that the main suit is pending since 2015 and so far it has not materially progressed, therefore, if the Court is granting indulgence to the petitioner then requisite direction may be issued to the learned Court below for expediting trial in the suit.

I have bestowed my consideration to the arguments advanced at Bar and perused the impugned order as well as requisite provisions under Order 8 Rule 9 CPC and Section 141 CPC.

After examining the matter and the nature of the suit, in my opinion, learned Court below has erred in rejecting the prayer of petitioner and consequently the impugned order cannot be sustained, and same is hereby set aside. In view thereof, application of the petitioner under Order 8 Rule 9 CPC is allowed and he is permitted to file subsequent pleadings in reply to temporary injunction application filed by the respondent-State.

However, before parting, it may be observed that considering the fact that suit is pending since 2015, learned Court below is expected to expedite trial and dispose it finally as early as possible. Learned Court below may also decide the application for temporary injunction at the earliest, strictly in accordance with law.

With the above observations, the writ petition stands dispose of.

Stay petition also stands disposed of.