Gurjant Singh vs Krishan Chander And Others on 27 March, 2000

Gurjant Singh vs Krishan Chander And Others on 27 March,

2000

Equivalent citations: AIR2001RAJ211, 2000(4)WLC266, 2000(2)WLN570

Author: B.S. Chauhan

Bench: B.S. Chauhan

ORDER

Chauhan, J.

(1). In the instant case, respondent No. 1 was given time to file written statement to the election
petition, vide order dated 11.1.2000 and the matter was directed to be listed on 21.2.2000. The
written statement was filed and a copy of the same was served upon the learned counsel for the
election petitioner, but the Bar Association had resolved to observe strike on 24.2.2000, therefore,
the matter was mentioned on 23.2.2000 that it would not be possible for the Advocates to appear on
24th Feb, therefore, the matter may be adjourned further and meanwhile, as written statement has
been filed, petitioner may be given time to file rejoinder. It was requested and agreed that the order
will be passed next day as the matter had not been on the board that day, not the file could be
summoned.

(2). On 24.2.2000, though none of the lawyers appeared in the Court but the order was passed to list
the matter on 16.3.2000 for further orders and meanwhile petitioner was allowed to file rejoinder.
Rejoinder has been filed in detail and when the matter was listed on 16.3.2000, Mr. Bhoot, learned
counsel for respondent No. 1, raised the objection regarding right of petitioner to file rejoinder. The
matter was heard in length on 16.3.2000 and again on 23.3.2000. Though the leave had been
granted on oral request of the learned counsel for petitioner and Mr. Bhoot was aware of it, but
Considering the seriousness of the objection of Mr. Bhoot, both the parties were allowed to argue on
merit.

(3). There is no dispute at the Bar to the extent that leave can be granted by the Court to file
replication/rejoinder on an oral request of petitioner-plaintiff as held in a case reported in 1972(2)
Mys. L.J. 328 (1), for the reason that the provisions of Order 8 Rule 9 C.P.C. do not require any
written application. But the serious question which has been agitated by Mr. Bhoot is that leave can
be granted only by application of mind by the Court provided it is satisfied that some new point has
been raised in the written statement, which requires reply and it cannot be filed as is permitted to be
filed in writ jurisdiction.

(4). Order 8 Rule 9 C.P.C. provides for subsequent pleadings, and reads as under:-

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 Gurjant Singh vs Krishan Chander And Others on 27 March, 2000

"No pleading subsequent to the written statement of the defendant, other than by
way of defence to be set-off or counter claim, shall be presented except by the leave of
the court and upon such terms as the Court thinks fit, but the Court may, at any time,
require a written statement or additional written statement from any of the parties
and fix a time for presenting the same."

(5). Thus, the submission made by Mr. Bhoot is that the aforesaid provisions do not provide for a
right of the plaintiff to file replication/rejoinder in a routine manner. However, Mr. Mehta, learned
counsel for the petitioner, has submitted that in case a new fact is brought by the
defendant-respondent in the written statement, the plain-tiff-petitioner may be allowed to file
rejoinder.

(6). In Shakoor & Ors. vs. Jaipur Development Authority & ors. (2), this Court considered the
application of the provisions of Order 8 Rule 9 even in a case of miscellaneous application under
Order 39 rule 1, C.P.C. and held that undoubtedly the contingency of filing a rejoinder does not arise
in every case because it could arise only in such cases where some new plea or fact is introduced by
the defendant in his reply, only with the leave of the Court and the purpose of putting such an
embargo is that plaintiff may not be permitted to introduce a pleading subsequently by a rejoinder.
The procedure provided for a trial for the suit and miscellaneous proceedings is meant for finding
out truth and to do justice. The procedure is always a hand-maid of justice and full opportunity
should he given to the parties to bring forth their case before the Court, unless such procedure is
specifically prohibited under the law and if Court is satisfied that subsequent pleadings should not
be permitted, the plaintiff cannot be denied his right to file a rejoinder.

(7). In Veerasekhara Varamarayar vs. Amirthavalliammal & Ors. (3), the Division Bench of Madras
High Court held that where the defendant brings the new facts in the written statement, the plaintiff
must get a chance to file a rejoinder challenging the truth and binding nature of the
allegations/averments made in the written statement. But law does not compel the plaintiff to file a
replication/rejoinder and the plaintiff cannot be deemed to have admitted the same simply because
he had not filed the rejoinder.

(8). In Rohan Lal Choudhary vs. Prem Prakash Gupta (4), the Patna High Court has taken the same
view holding that the plaintiff is entitled to join issues with the defendant in respect to all those
allegations which are made in the written statement and may lead evidence in rebuttal of those
allegations notwithstanding the fact that he did not file any rejoinder.

(9). In M/s. Ajanta Enterprises vs. Bimla Charan Chatterjee & Anr. (5), this Court held that it is not
permissible to file a rejoinder to all allegations made in the written statement and the rejoinder or
replica can be filed with the permission of the Court only if the defendant has raised a plea of new
facts and, thus, permission must be granted after taking into consideration all the facts and
circumstances of the case, especially the pleas which have been raised in the written statement. In
the garb of submitting a rejoinder, a plaintiff cannot be allowed to introduce new pleas in his plaint
so as to alter the basis of his plaint. In a rejoinder, plaintiff may simply explain if certain additional
facts have been taken in the written statement but he cannot be allowed to come forward with an

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entirely new case in the rejoinder. The original pleas cannot be permitted to be altered under the
garb of filing a rejoinder. Rejoinder/replication cannot be permitted for introducing pleas which are
not consistent with the earlier pleas.

(10). In State of Rajasthan vs. Mohammed Ikbal (6), this Court considered its earlier judgments in
M/s. Ajanta Enterprises (supra) and M/s. Gannon Dunkerley & Co. Ltd. vs. Steel Authority of India
Ltd. (7), and held that the plaintiff cannot be allowed to introduce new pleas under the garb of filing
rejoinder, so as to alter the basis of his plaint. In rejoinder, plaintiff has a right to explain only the
additional facts incorporated by the defendant in his written statement. In rejoinder, plaintiff
cannot be permitted to come forward with an entirely new case or raise inconsistent pleas so as to
alter his original cause of action.

(11). In Ishwar Lal & Anr. vs. Ashok & Anr. (8), this Court held that rejoinder-affidavit can be filed
only with leave of the court and it is a matter of judicial discretion vested in the trial court which
should be exercised only if there are cogent reasons to allow the plaintiff to file rejoinder to the
written statement. In Saiyed Sirajul Hasan vs. Sh. Syed Murtaza Ali Khan Bahadur & Ors. (9), the
Delhi High Court had held that rejoinder cannot be filed as a matter of right and it is an absolute
discretion of the Court to grant leave to present a fresh pleading. A party seeking permission under
Order 8 Rule 9 has to provide "cogent reason for permission" to file additional plea.

(12). In M/s. Anant Construction (P) Ltd. Vs. Ram Niwas (10), the Delhi High Court held that a
replication to written statement cannot be filed, not can be permitted to be filed ordinarily much
less in routine. The Court has a discretion to permit replication and after scrutinizing the plaint and
the written statement, if it comes to the conclusion that the plaintiff can be permitted to joint
specific pleadings to a case, specifically and newly raised in the written statement, and such a need
arises for the plaintiff introducing a plea by way of "confession and avoidance." The Court further
held that a mere denial of the defendant's case by the plaintiff need no replication for the reason that
he can safely rely on rules of implied or assumed traverse and joinder of issue.

(13). Thus, in the sum and substance, the plaintiff cannot be permitted to raise a new plea under the
garb of filing rejoinder- affidavit, or take a plea inconsistent to the pleas taken by him in the
petition, nor the rejoinder can be filed as a matter of right, even the Court can grant leave only after
applying its mind on the pleas taken in the plaint and the written statement.

(14). Before the instant case could be examined in view of the aforesaid legal proposition, Mr.
Mehta, learned counsel for the petitioner, submitted that petitioner may be permitted to file
rejoinder only of pleadings with respect to Annex. F and G. of the Election Petition as replied in the
written statement. Rest of the rejoinder, which runs to 50 pages, may be straight-way rejected.

(15). Thus, the controversy remains limited only with respect to the pleadings in Annex. F and G. In
para 15 of the written statement, respondent No. 1 has taken the plea of non-admissibility of the
documents as such and regarding verification. The same cannot be held to be raising a new factual
plea. Para 16 of the written statement again refers to inadmissibility of documents contained in
Annex. F which contains round-wise result sheets. The same also does not raise any new fact. In

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para 18 of the written statement, it has been submitted that documents showing the round-wise
counting (Annx.F) was not prepared by the official concerned with the election, rather the same was
"prepared by the Statistical Department who prepare the sheets as and when it receives the
round-wise figures of counting. In fact, these papers 007 (F) are the Proforma of the Statistics
Department for the purpose of feeding data into the computer. In para 19 of the written statement,
again the same averments have been made as are made in para 18 above. In para 13 and 14 of the
rejoinder, there has been denial of the averments made in para 18 and 19 of the written statement
which amounts to raising new facts and the rejoinder may be permitted only to the extent of para
No. 18 and 19 so far Annex. F is concerned.

(16). In para 22 of the written statement, it has been submitted that petitioner has purposely
suppressed the identity of the counting agents who had prepared the documents contained in
Annex. G and the documents therein are false and fabricated documents. In para 17 of rejoinder, the
same has been denied. Further, as reference has been made in para 22 also with respect to the
proceedings that documents were not supplied as per the requirement of the provisions of Sec. 81
(3) of the Representation of People Act, 1951, and the earlier dispute which had been decided by this
Court and ultimately went to the Hon'ble Supreme Court, actually do not relate to a new factual
plea. Thus, the same is rejected.

(17). Thus, in view of the above, the rejoinder is permitted to be filed only to the extent of para 18
and 19. Ordered accordingly.

(18). List this case on 03.4.2000 for filing Admission/Denial of documents at 2:00 p.m.

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