Moti Yadav vs Bhola Yadav

Rakesh Tiwari, J.—Heard counsel for the appellant and perused the record.

This second appeal has been filed challenging the validity and correctness of the judgment and decree dated 27.3.2010 passed by Additional District Judge, court no. 3, Mau in civil appeal no. 20 of 2001arising out of judgment and decree dated 19.4.2001 passed by Civil Judge (J.D.), Mau in original suit no. 155 of 1990.

Impugned judgment and orders have been assailed on the ground that courts below have erred in not considering the facts mentioned in the replication regarding title of the appellant, by which disclosure had been made as to acquirement of the property. It is stated that courts below have misdirected itself in holding that it was an admitted fact that well in Sahan on the land in dispute claimed by the appellant was not ancestral but the said property is said to have been purchased by the father of the appellant namely Sri Balli Yadav from one Ram Dahal Rai and as the lower appellate court has decided the case without determining the real points in issue, as such the impugned judgment and orders are vitiated and are liable to be set aside. It is also submitted that it is established by evidence that partition had already taken place between the parties and they are residing in their portions separately.

It appears from record that civil suit no. 155 of 1990 was filed by the appellant against the defendant respondent for the relief of permanent injunction, in which the respondent filed his written statement on 18.1.1996 denying the plaint allegations. The plaintiff appellant filed his replication against written statement of the defendant on 29.10.1996. Another suit for partition being suit no. 418 of 1990 was filed by the defendant respondent, in which the appellant was also arrayed as party to the proceedings. In this suit for partition, the present appellant filed his written statement denying allegations of the plaint, to which replication was filed by the defendant respondent. Both the aforesaid suits i.e. suit no. 155 of 1990 and 418 of 1990, were consolidated by order dated 27.2.1997 and suit no. 155 of 1990 was made the leading case. On consolidation of suits, both the suits were tried jointly and evidence was led by the parties.

The trial court by its judgment and decree dated 19.4.2001 dismissed the suit filed by the plaintiff appellant i.e. suit no. 155 of 1990 and decreed the suit filed by the defendant respondent being suit no. 418 of 1990. Aggrieved the plaintiff appellant filed civil appeal no. 20 of 2001 against the judgment and decree passed in suit no. 155 of 1990 and the same has been dismissed by the first appellate court by judgment and order dated 27.3.2010.

The moot question argued by the learned counsel for the appellant is that the replication is part of proceedings and even if no amendment is filed under Order VIII Rule 9, new facts can be averred for rebutting the title of the respondent who claimed the property in dispute to be his. According to the learned counsel for the appellant the suit was filed for simple injunction and not for title and as such the plaintiff had right in the replication to bring on record the acquirement of the property denying the claim of the defendant respondent in his written statement.

Learned counsel for the appellant has relied upon two judgments of this Court in Civil Revision No. 448 of 2007, Sheo Deen Mishra Vs. Ajai Kumar Jain, decided on 29.4.2009 as well as judgment dated 31.10.2003 rendered in Civil Misc. Writ Petition No. 2877 of 1983, Fida Husain Vs. VIth Additional District Judge, Azamgarh and another.

In the case of Sheo Deen Mishra (supra), the Court considered the question of applicability of Order VIII rule 9 of Code of Civil Procedure and it was held that no pleadings 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. In paragraph no. 10 and 11 of this decision relied upon by the counsel for appellant, it has been held that since in the present case replication was filed with the leave of the Court, even though the petitioner did not file any formal application seeking permission to file replication, the leave of the Court can also be obtained orally and it is clearly within the discretion of trial court whether to permit a plaintiff or not to file a replication and the order of the trial court permitting to grant such permission is not a matter for interference in the revision.

In the case of Fida Husain (supra), the Court considered the provisions of Order VI Rule 17 and in paragraph no. 11 of the judgment held that replica by plaintiff under Order VI Rule 17 is nothing but amendment in the plaint. Nomenclature is not decisive. Replica may be taken to be part of the pleading only if it satisfies the requirement of amendment in the plaint as provided for under Order VI Rule 17.

Last case relied upon by the counsel for appellant is Bhagwati Prasad Vs. Chandramaul (A.I.R. 1966 S.C. 735), in which reliance has been placed by the counsel on paragraph nos. 9,10,12 and 15, it is held that if a party asks for a relief of a clear and specific ground and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case, Court must bear in mind the other principle that considerations of form cannot over ride the legitimate considerations of substance.

The Court further held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily dis entitle a party from relying upon if if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.

In the present case, the trial court had framed the following issues:

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No issue was framed regarding the title of the parties even though according to the plaintiff appellant, the defendant respondent had for the first time stated in his written statement that property in dispute to be his, which was denied in replication by him. None of the parties in the suit had raised this issue before the court,. It appears that this was for the reason that replication filed by the plaintiff appellant was only in the nature of rejoinder and no leave of the court was sought under Order VIII Rule 9 or Order VI Rule 17, therefore, the decisions in Sheo Deen Mishra (supra) and Fida Husain (supra) relied upon by the counsel for appellant are not applicable to the facts and circumstances of the present case and for this reason also the decision in Bhagwati Prasad''s case (supra), is also not applicable.

A new case made out in the replication regarding the ownership necessarily requires amendment under Order VIII Rule 9 and leave of the court and issues are to be framed. No order of the court below has been brought to the notice of this Court by which leave has been granted by the court. Rather from the judgment of the lower appellate court it appears the court noticed this lacuna in the replication by which new facts had been brought and found that it was not part of the pleadings. In this regard, the lower appellate court has held thus:

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The court below also considered the question whether the land in dispute shown by letters A,B,C,D had been partitioned and whether the plaintiff is entitled to 1/4th share in the aforesaid land and has found that it has not been partitioned and that no illegality has been committed by the trial court in arriving the conclusions.

The most important ingredient of amendment in pleading is permission of court granted on the grounds on which amendment may be permitted. In that case, it does not appear that any permission of the Court was sought or granted for adding in the plaint the allegations made in the replica,hence the Court held that it cannot be taken to be part of the pleadings.

Any new fact in the replication can be considered by the court only if it satisfies the provisions of Order VIII Rule 9 or it can only be taken as part of the pleadings if it satisfies requirements of amendment of the plaint. In both instances where a new case or new point is taken, permission of the court is necessary. Merely because replication has been filed will not make new averment a part of the pleadings, on which issues are to be framed, hence the decisions cited by the counsel for the appellant are of no help to him.

For the reasons stated above, the findings recorded by the trial court as well as first appellate court, do not require any interference by this Court nor any substantial question of law arises for consideration in this case.

The second appeal is accordingly dismissed. No order as to costs.