One crucial question is when does the pleading under Civil Procedure Code, 1908 (CPC) can be deemed to have been complete? Does filing of subsequent pleading after filing of Written Statement be permissible?
Generally, Pleadings are completed when Defendant files its Written Statement (“WS”). However, the Order VIII Rule 9 permits the parties to file a subsequent pleading with the leave of the Court. Subsequent pleadings are not substitute for amendment in original pleadings. A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings.
Order 8 Rule 9 CPC provides for subsequent pleadings, and reads as under:-
“Subsequent Pleading – No pleading 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; but the Court may at any time require a written statement or additionally written statement from any parties and fix a time of not more than thirty days for presenting the same.
It is notable that the term ‘Replication’ does not find any place in CPC. However, in various cases, Plaintiff has been permitted to file a rejoinder to the written statement filled by the defendant, such a rejoinder filled by the Plaintiff is termed as “Replication”.
It can be stated that ‘Replication’ is a pleading by plaintiff in answer to defendant’s plea. ‘Rejoinder’ is a second pleading by defendant in answer to plaintiff’s reply i.e. replication.
Ordinarily, a Replication is not to be filed nor permitted to be filed by Court. It can be filed in three situations.
(i) when required by law;
(ii) when a counter claim is raised or set off is pleaded by defendant
(iii) when the court directs or permits a replication being filed.
It is observed that in certain cases with the leave of the Court, Plaintiff has been permitted to file a rejoinder to the written statement filled by the defendant.
In Shakoor & Ors. vs. Jaipur Development Authority & ors. 8th August 1986, 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.
In Veerasekhara Varamarayar vs. Amirthavalliammal & Ors. On 27th June 1973, 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.
In Rohan Lal Choudhary vs. Prem Prakash Gupta on 25th July 1979, 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.
In M/s. Ajanta Enterprises vs. Bimla Charan Chatterjee & Anr. 30th June, 1987, 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 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.
In Ishwar Lal & Anr. vs. Ashok & Anr. on 3rd March, 1998, 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. on 6th August 1991, 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.
In M/s. Anant Construction (P) Ltd. Vs. Ram Niwas, 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.
In M.L. Gupta Vs Kripal Singh [98(2002) DLT683, “It is clear from this rule that the replication cannot be filed by the Plaintiff, except by way of defence to a setoff , as matter of right, But with the leave of the leave of the Court it can be presented. Once the Court required a party to file the replication or allowed the plaintiff to present it then the replication will become part of the pleading. Head note ‘subsequent pleadings’ and the opening words ‘No Pleading’ used in this provision clearly bring the replication filed after the written statement within the purview of the word ‘pleading’……”
Remark: 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. Further, it is clear that as per CPC the pleadings are generally completed after the Defendant files his WS (in cases where there is no set-off or counter-claim). It is further clear that there is no mandatory provision which compels the Plaintiff to file a replication/rejoinder to such WS filed by the Defendant.
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I need an attorney to enter my newly discover evidence where I was messed around in prosecution 26 years ago.Im still under the convention