Om Prakash vs Sudi Bai

By way of the present writ petition, the petitioner has called in question, the order dated 2.7.2019, passed by the learned Addl. District Judge No.3, Udaipur (hereinafter referred to as the learned trial court), vide which petitioner's application dated 28.5.2019, filed under Order VIII Rule 9 of the Code of Civil Procedure has been rejected.

Narrated in brief, the facts of the present case are that the petitioner herein had field a suit for specific performance against defendant- respondent herein, with an assertion that she had executed the sale deed dated 3.10.2018, made her thumb impression thereupon, but however, she refused to get it registered subsequently. Alongwith the said suit, an application for grant of temporary injunction was also filed.

In response to the petitioner's application, the defendant filed a reply and while denying the averments made in the application, she stated that the sale deed in question was not executed by her and that the deed she executed, wast meant for some agricultural land.

Being faced with such reply to the temporary injunction application, the petitioner filed an application under Order VIII Rule 9 of the Code of Civil Procedure on 28.5.2019 and requested that the replication be permitted to be filed. Alongwith the application, the petitioner filed proposed replication and requested the Court to take the same on record.

The learned trial court rejected petitioner's said application, inter alia, observng that the defendant has not come with any new/additional facts, for which filing of the rejoinder was necessitated. The learned trial court gone into the proposed replication/rejoinder and found that the proposed rejoinder, which the plaintiff wanted to file was unwarranted in the facts obtaining in the present case. The trial Court has also taken into consideration, the plaint and written statement filed by the rival parties.

Mr. Mankad, learned counsel for the petitioner assailing the impugned order dated 2.7.2019, contended that the petitioner wanted to file rejoinder only qua paras nos.2 and 4 of the reply to the application for grant of temporary injunction and sought to bring to fore, that the assertion made by the defendant in her reply to the application were incorrect. He argued that if the proposed rejoinder filed by the petitioner is taken on record, it would enable the trial court to decide the issues properly it would avoid multiplicity of litigation.

I have heard learned counsel for the petitioner and perused the material available on record.

Having gone through the written statement vis-a-vis the application filed by the petitioner, this Court is of the firm view that the defendant has made simple denial the facts asserted by the petitioner - plaintiff and none of the contents of the reply to the application for grant of temporary injunction can be said to be new/additional facts, for which the petitioner is required to file a rejoinder.

The assertions of the rival parties available on record, can be proved by leading appropriate oral or ocular evidence. Whatever has been stated by the defendant, in considered opinion of this Court, does not call for any rejoinder/replication.

That apart, in view of the provisions contained in Order VIII Rule 9 of the Code of Civil Procedure, it is the discretion of the learned trial court to grant leave to file replication. If such discretion has been exercised by the learned trial court, this Court does not find it to be a fit case warranting interference in its supervisory jurisdiction under Article 227 of the Constitution of India, as no injustice, muchless substantial injustice has been caused to the petitioner.

As an upshot of the discussion aforesaid, the writ petition is dismissed. The stay application also disposed of accordingly.