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Judgment
A.N. Venugopala Gowda, J.—The Respondent No. 1/plaintiff has filed a suit against the respondent Nos. 2-5 and the petitioners to pass a judgment and decree of specific performance of agreement of sale deed dated 12.07.2004, by declaring that the compromise decree 07.07.2006 passed in O.S. 337/2006 (Old No. 1227/2002) as not binding on the plaintiff in respect of the plaint schedule property. Defendant No. 5 has filed written statement dated 21.01.2009. Plaintiff filed an application under Order 8 Rule 9 of CPC to grant leave to file rejoinder/reply to the written statements of defendants 5 and 6. IA No. 26 though was opposed, the Trail Court has passed an order dated 17.2.2011 allowing the application and permitting the plaintiff to file rejoinder to the written statements filed by Defendant Nos. 5 and 6. The said order has been questioned in this writ petition filed by the defendant Nos. 5 and 6 in the suit. Sri K.S. Narayana Swamy, learned advocate appearing for the petitioners contended that the learned Trial Judge has committed material error and illegality in allowing IA No. 26, when there was no counter claim filed by the plaintiff. Learned Counsel placed reliance on an order passed in the case of Mr. Glen Fredric Picardo Vs. Mr. Rodney Picardo since deceased by L.Rs,
Sri H.V. Harish, learned advocate appearing for respondent No. 1, on the other hand, by referring to certain orders passed by other High Courts contended that, since the provision under Order 8 Rule 9 of CPC permits the parties to file their additional pleadings subsequent to the filing of written statement with the leave of the court, the Trial Court is justified in allowing IA No. 26.
Having heard the learned counsel, perused the Wit record, point for consideration is:
Whether the impugned order is vitiated and warrants interference?
The plaintiff has not filed any subsequent pleading. By filing IA 26, leave was sought to file rejoinder/reply to the written statements filed by defendants 5 and 6. The matter now is squarely covered by a decision in the case of Mr. Glen Fredric (supra), wherein, taking note of a decision of the division bench reported in 1961 Mys. L.J. 904 in the case of B.N. Padmanabhaiah VS. M/S. Sri Jayamuragarajender Oil Mills, Davanagere & Others holding that reply statement cannot be said to be a part of the pleadings and the defendant had no opportunity to meet the allegations contained in the reply statement and also the decision reported in Amalgamated Bean Coffee Trading Co. Ltd. Vs. Zarir Minoo Bharucha and Another, having not taken note of the said Division Bench judgment, it has held as follows:
In my opinion the pleadings would be complete with the filing of the plaint, written statement or additional written statement to a set off or any counter-claim with the leave of the Court. Any addition or deletion to the said pleadings can be by way of an amendment being permitted under Rule 17 of Order VI CPC and not by granting leave to file replication. For amendment of pleadings, the permission of the Court is required to be obtained, as is clear from the words contained in Rule 17 of Order VI CPC. In the said view of the matter, the trial court is right in recording the finding that, when once the defendant places his defence by way of a written statement, there is no provision to file a replication to the written statement.
The learned Trial Judge has failed to take note the ratio of the decision of Mr. Glen Fredric Picardo (supra).
Sri H.V. Harish, is not able to point out any other decisions of this court taking contrary view nor any judgment of the apex court, which would be binding under Article 141 of the Constitution of India. In the absence of any contrary view taken either by this court or by the Apex Court, I am bound by the view which was taken in the case of Mr. Glen Fredric Picardo. In the said view of the matter, reference sought to be made by Sri H.V. Harish, to the decisions of other High Courts, has no relevance. The impugned order having passed on account of a material irregularity on the part of learned trial judge in not taking into consideration the ratio of decision reported in Mr. Glen Fredric Picardo Vs. Mr. Rodney Picardo since deceased by L.Rs, the impugned order being irrational, is un-sustainable.
In the result, the writ petition is allowed and the impugned order is quashed. IA 26 filed in the suit being not maintainable, stands dismissed. If an application for amendment of pleadings is filed by the parties, the same be considered and decision taken in accordance with law. No costs.