Karan Singh and Another vs Mukhtiyar Singh

A.K. Singh, J.—Heard the learned Counsel for the petitioner and the learned Counsel for the non-petitioner.

This revision petition u/s 115 C.P.C. is directed against the order dated 15.9.1998 passed by the learned Civil Judge (S.D.) and Additional Chief Judicial Magistrate, Srikaranpur in civil misc. case No. 2/97 whereby the rejoinder filed by the non-petitioner (plaintiff) was ordered to be taken on record under Order 8 Rule 9 C.P.C.

While passing the impugned order, the learned Civil Judge has pointed out that by rejoinder, no new case has been set up.

The learned Counsel for the petitioner has submitted that by filing the rejoinder, the plaintiff has set up a new case and it was impermissible for him to do so. The learned Counsel for the non-petitioner (plaintiff) has submitted that provisions of Order 8 Rule 9 C.P.C. applied to the applications filed under Order 39 Rules 1 and 2 C.P.C. and, therefore, rejoinder was legally permissible for the plaintiff. It is further submitted by him that by the rejoinder, no new case has been set up. He has placed reliance on the decision given by the learned Single Judge in Shakoor and etc. Vs. Jaipur Development Authority, Jaipur and etc., In para No. 7 of the judgment, the learned Single Judge has observed -

Order 8, Rule 9 permits the subsequent pleadings by the leave of the Court. This provision no doubt relates to the proceedings in a suit, but Section 141 deals with miscellaneous proceedings. The wordings of Section 141 clearly lay down that the procedure provided in this Code in regard to suits shall be followed, so far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The proceedings for temporary injunction are miscellaneous proceedings which are separately registered and decided by a separate order. Any order passed under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 18 of order is appealable under Clause (r) of Order 43 Rule 1 C.P.C. Any order passed on an application under Order 39, Rule 1 and 2 is temporary in the sence that it remains in force till the final disposal of the suit, but it cannot be lost sight of that such order has a very important effect and bearing as the main suit takes long number of years before final decision. Such order passed on an application for temporary injunction. Sometimes the Court has to pass an order in the form of mandatory injunction on an application for temporary injunction in order to meet the ends of justice.

In para No. 9, the learned Single Judge further observed --

The wordings of Section 141 are clear to the effect that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in all the proceedings. The words as far as it can be made applicable cannot be given a narrow interpretation. The procedure provided both for the trial of a suit or miscellaneous proceedings is meant for finding out the truth and to do justice. The procedure is always hand maid of justice and full opportunity should be given to the parties to bring forth their case before the court, unless such procedure is specifically prohibited under the law.

I respectfully concur with the view taken by the learned Single Judge. In view of the provisions contained in Section 141 C.P.C., the procedure laid down in Order 8 Rule 9 C.P.C. is applicable in the case of the applications filed under Rules 1 and 2 of Order 39 C.P.C. Therefore, subject to just exceptions, the plaintiff-non-petitioner was entitled to file a rejoinder after the reply of the application had been filed by the defendant-petitioner.

For the above reasons, it cannot be said that the impugned order passed by the learned Civil Judge is without jurisdiction or it suffers from any such infirmity as may call for interference by this Court u/s 115 C.P.C. The learned Counsel for the petitioner has submitted that by filing the rejoinder, the plaintiff-non-petitioner has set up a new case which is impermissible for him to do so. It is true that even when a party is entitled in law to file the rejoinder, no new case should be set up by filing the rejoinder. The reasons for the observance of this rule is not difficult to ascertain. After the filing of the rejoinder by the party, the process of submitting pleadings must come to an end because this process cannot be allowed to go on indefinitely. In order, the process of filing pleadings of respective parties, be subjected to reasonable restrictions it is necessary that no new case should be set up by filing rejoinder. If a new case is intended to be set up, this should be done by moving a proper application under Rule 17 C.P.C. so as to amend the original pleadings.

In view of this position of law, it would be open to the petitioner to raise any objection at the time of hearing of the application for injunction if any new case has been set up by the plaintiff-non-petitioner in his favour.

With these observations, the revision petition is rejected.