IN THE HIGH COURT OF KARNATAKA, BENGALURU R DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 52597 OF 2015 (GM-CPC) BETWEEN:
KRISHNAMURTHY S/O. LATE LINGAIAH, NOW AGED ABOUT 40 YEARS, R/AT II CROSS, JANATHA COLONY, MARALUR DINNE-572 105.
TUMKUR DISTRICT.
… PETITIONER (BY SRI. DR. J S HALASHETTI, ADVOCATE) AND:
1. HANUMAKKA W/O. LATE LINGAIAH, NOW AGED ABOUT 82 YEARS, 2. HANUMANTHARAYAPPA S/O. LATE LINGAIAH, NOW AGED ABOUT 58 YEARS, 3. GANGANNA S/O. LATE LINGAIAH, NOW AGED ABOUT 56 YEARS, 4. SUSHEELAMMA D/O. LATE LINGAIAH, NOW AGED ABOUT 45 YEARS, 5. ANAJANA DEVI D/O LATE LINGAIAH, NOW AGED ABOUT 45 YEARS, 6. LAKSHAMAMMA D/O LATE LINGAIAH, W/O LAKSHMAIAH, NOW AGED ABOUT 52 YEARS SINCE DEAD REPRESENTD BY HER BY LRS 6A. LAKSHMAIAH S/O CHIKARANGAIH NOW AGED ABOUT 70 YEARS 6B. KEMPANNA S/OLAKSHMAIAH NOW AGED ABOUT 35 YEARS 6C. MANJULA D/O LAKSHMAIAH NOW AGED ABOUT 31 YEARS 6D. RENUKA D/O LAKSHMAIAH NOW AGED ABOUT 30 YEARS 6E. GEETHA D/O LAKSHMAIAH NOW AGED ABOUT 28 YEARS RESPONDENTS 1 TO 6E ARE R/AT MUDIGERE, BELLAVI HOBLI-572 107, TUMKUR TALUKA.
7. MANJULA D/O LATE LINGAIAH, W/O. RAMESH, NOW AGED ABOUT 36 YEARS, R/AT PANDITHANAHALLI-572 168, TUMKUR TALUKA.
8. CHIKKAHANUMAKKA W/O. LATE ANJANAPPA, NOW AGED ABOUT 85 YEARS, 9. RAMAIAH S/O. LATE ANJANAPPA, NOW AGED ABOUT 68 YEARS, 10. HANUMANTHAIAH S/O. LATE ANJANAPPA, NOW AGED ABOUT 66 YEARS, 11. SHULAIAH S/O. LATE ANJANAPPA, NOW AGED ABOUT 63 YEARS, OCCUPATION RTD. SCHOOL TEACHER, 12. MOHAN S/O. LATE ANJANAPPA, NOW AGED ABOUT 58 YEARS, OCCUPATION: BANK MANAGER, DEFENDANT NO.8 TO 12 ARE RESIDING AT JANATHA COLONY, MARALUR DINNE-572 105, TUMKUR TALKUKA.
13. LAKSHMAMMA D/O. LATE ANJANAPPA, NOW AGED ABOUT 50 YEARS, OCCUPATION: BEO, COURT CIRCLE, BELGAUM-590 001.
14. M N NARASIMHARAJU S/O. NARASIMHAIAH, NOW AGED ABOUT 73 YEARS, R/AT "GURU KRUPA", KUVEMPU NAGAR, OPP: TO PARK, TUMKUR-572 101.
15. GOVINDASWAMY S/O. PATCHAPPA, NOW AGED ABOUT 70 YEARS, R/O. RAILWAY STATION ROAD, OPP: SERICULTURE OFFICE, GANDHI NAGAR, TUMKUR-572 101.
16. R. MAYANNA S/O. RANGAPPA, SINCE DEAD, REPRESENTED BY HIS LRS 16A. SHARADAMMA W/O. R. MAYANNA, AGED ABOUT 65 YEARS, 16B. DEVARAJ S/O. R. MAYANNA, AGED ABOUT 42 YEARS, 16C. B.M. PRASHANTHKUMAR S/O. R. MAYANNA, AGED ABOUT 40 YEARS, 16D. B.M. AMBIKA S/O. R. MAYANNA, AGED ABOUT 38 YEARS, 16E. B.M. RAJESHWARI S/O. R. MAYANNA, AGED ABOUT 32 YEARS, 16F. B.M. MADHUSUDAN S/O. R. MAYANNA, AGED ABOUT 24 YEARS, ALL ARE RESIDING AT NO.936, 2ND MAIN, 6TH CROSS, VINOBHANAGAR, TUMKUR-572 101.
17. PRAKASHA S/O. RANGEGOWDA, AGE:MAJOR, R/O. JANATHA COLONY, MARALUR-572 105, TUMKUR TALUK.
18. JAYANTHI W/O. NANDEESH, AGE: MAJOR, R/AT PANDURANGA NAGAR, TUMKUR-572 101.
19. B.T. SATHISHKUMAR S/O. LATE THIMMAIAH, AGE: MAJOR, R/O. "RAGHU NILAYA", HOUSE NO. 303, NEAR CYCLE STAND FACTORY, UPPARAHALI, TUMKUR-572 101.
20. B. BEDATHUR BUDENSAB S/O. BUDAPPA @ BUDUS, AGE: MAJOR, R/O. MADAKSIRA, MANNUR MAJARE, SUNKAREDDI PALLI-572 101, TUMKUR TALUKA.
21. K.S. SHIVAKUMARASWAMY S/O. LATE SIDDAPPA, NOW AGED ABOUT 60 YEARS, R/AT: RAILWAY STATION ROAD, GANDHI NAGAR ROAD, TUMKUR-572 101.
22. Y.N. NAGARAJ NOW AGED ABOUT: 52 YEARS, OCCUPATION: EX MUNICIPAL COUNSELOR, R/O. 10TH CROSS, D.NO. 10, K.R. EXTENSION, TUMKUR-572 101.
23. L.R. PADMAVATHI W/O. L.M. RAMACHANDRA GUPTA, AGE: MAJOR, R/AT. "BALAJI KRUPA", VINAYAKA NAGAR, TUMKUR-572 101.
24. S.H. RAGHAVENDRA AGE: MAJOR, C/O. HANUMANTHARAYAPPA, ANJANAPPA GALLI, B.H. ROAD, GOURIBIDANUR-561 210.
25. G.B. JYOTHI GANESH S/O. G.S. BASAVARAJU, EX. M.P., NOW AGED ABOUT 44 YEARS, R/O. GANDHI NAGAR, TUMKUR-572 101.
26. G.B. ASHOK S/O. G.S. BASAVARAJU, EX. M.P., NOW AGED ABOUT 42 YEARS, R/O. GANDHI NAGAR, TUMKUR-572 101.
27. ANJINAPPA S/O. LATE LINGAIAH, NOW AGED ABOUT 52 YEARS, 28. MARUTHI S/O. LATE LINGAIAH, NOW AGED ABOUT 50 YEARS, BOTH ARE R/AT II CROSS, JANATHA COLONY, MARALUR DINNE-572 105, TUMKUR DISTRICT.
… RESPONDENTS (BY SRI. NAVEEN J N, ADVOCATE FOR SRI. A NAGARAJAPPA, ADVOCATE FOR R9 TO 12;
SRI. T S KRISHNASHASTRY, ADVOCATE FOR R12 TO 17; VIDE ORDER DATED 15.12.2015, NOTICE TO R1 TO R11 & R18 TO R37 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 23.1.2015, IN O.S. 225/2005 PASSED BY THE 4TH ADDITIONAL CIVIL JUDGE [JR.DN.] AT TUMKUR VIDE ANN-N AND ALLOW THE APPLICATION FILED BY THE PLAINTIFF NO.3 [PETITIONER HEREIN] UNDER ORDER 8 RULE 9 OF CPC IN O.S. 225/2005 VIDE ANN-K, AND DIRECT THE 4TH ADDITIONAL CIVIL JUDGE [JR.DN.] AT TUMKUR TO TAKE THE REJOINDER ON RECORD, VIDE ANN- L.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner/plaintiff has invoked the writ jurisdiction of this court for assailing the order dated 23.01.2015 made by the learned IV Addl. Civil Judge (Jr. Dvn) at Tumkur, on his application under Order VIII Rule 9 of CPC, 1908, whereby leave to file rejoinder to the Written Statement of the defendant Nos.8 to 13 is denied on the sole ground that the said provisions of CPC avail only to the defendants and not to the plaintiffs. After service of notice, the respondents have entered appearance through their counsel who opposes the Writ Petition.
2. Learned counsel for the petitioner/plaintiff vehemently contends that the right to file rejoinder by way of Additional Pleadings under the provisions of Order VIII Rule 9 of CPC, does avail to the plaintiffs as well and therefore, the impugned order is flawsome, warranting indulgence of this court in its writ jurisdiction to set the injustice at naught, occasioned thereby. In support of his contention, he banks upon certain Rulings of the Apex Court and of this court which shall be adverted to infra.
3. Learned counsel for the respondent/defendants taking the court through the text of the said provisions, contends with equal vehemence that the right to file Additional Pleadings by way of Rejoinder, Replication or otherwise is confined to the defendants and an argument to the contrary would militate against the text and context of the said provisions. In support of his submission, he banks upon a Ruling of this court which shall be discussed hereinafter.
4. In view of these rival contentions, the short question of law of some significance that arises for consideration in this case is:
Whether the provisions of Order VIII Rule 9 of CPC, 1908, do avail to the plaintiffs so that they too can file the Additional Pleadings as against the contentions in the Written Statements of the defendants in a suit?
5. Rule 9 of Order VIII of CPC, as amended in 1976 and in 2002 reads as under:
“9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit; but the Court may any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”
6. A Co-ordinate Bench of this court (Noronha, J)in the case of R. Dayananda Sagar Vs. Vatal Nagaraj, 1972 (2) Mys LJ 328 at para 13 observed: Order VIII Rule 9 of the Code refers to a pleading subsequent to the written statement of a defendant, to be filed by leave of the court.
The word “pleading” would, as it appears to me, include a reply Statement of the plaintiff. In the case of Mohammed Abdul Gafoor Vs. Peddappayachari (RSA No.585/1974), another Co-ordinate Bench (G.N. Sabhahit, J) observed that, Order VIII Rule 9 of the Code of Civil Procedure which speaks of subsequent pleadings makes it manifest that, if, in the written statement, the defendant sets out a counter- claim or claims a set off, the plaintiff has a right of reply to the written statement and that forms part of the pleadings. If the plaintiff wants to file an additional statement, however, in other cases, he has to seek and take the permission of the Court. The Apex Court in the case of K.Laxmanan Vs. Thekkyil Padmini, AIR 2009 SC 951 at paragraph 31 observed “31. Pleadings as we understand under the Code of Civil Procedure (for short the "Code") and as is defined under the provision of Rule 1 Order VI of the Code consist only of a plaint and a written statement. The respondents/plaintiff could have filed a replication in respect to the plea raised in the written statement, which if allowed by the court would have become the part of the pleadings, but mere non filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.”
7. Yet another Co-ordinate Bench (Ajit J.Gunjal, J) in the case of M/s Amalgamated Bean Coffee Trading Co. Ltd Vs. Zarir Minoo Bharucha, ILR 2005 KAR 2089 after referring to Dayananda Sagar Case supra, at para 10 observed: “Order 8 Rule 9 would deal with a subsequent pleading which is filed subsequent to the filing of written statement of a defendant. It is not a case where the rejoinder is being filed to claim a set off or a counter claim. It is in the nature of a replication filed to the written statement, which is always permissible under the law. The Code of Civil Procedure for from pinning down the plaintiff to the plaint and the defendant to the written statement does contemplate further pleading. It is permissible to the plaintiff petitioner to file a replication to add to his pleas already made in the plaint. The only condition is the leave of the Court. It is only meant for denying or clarifying the facts stated in the written statement. Fresh cause of action or fresh case is not brought about by filing replication. It is mainly clarificatory in nature. Consequently, I am of the considered view that the learned Trial Judge was not justified in rejecting the leave to file replication on the ground that it does not squarely fall under Order 8 Rule 9 of the Code of Civil Procedure.”
8. The ratio decidendi emerging from the aforesaid decisions solicit an affirmative answer to the question framed above and being considered by this court. However, yet another Co-ordinate Bench of this court (A.N.Venugopala Gowda, J) in the case of Mr.Glen Fredric Picardo Vs. Mr.Rodney Picardo, ILR 2010 KAR 4522 at para 9 took a contrary view by observing as under:
“9. A plain reading of Rule 9 under Order VIII does not provide for a reply by the plaintiff, subsequent to the written statement of a defendant, other than by way of defence to a set-off or counter-claim, with the leave of the Court and upon such terms as the Court thinks fit. However, the said provision enables the Court to call upon a party to file a written statement or an additional written statement within a fixed time. If, in the written statement filed by the defendant there were to be a set-of or counter-claim, the plaintiff who stands in the position of a defendant insofar as the claim with regard to either the set-off or counter- claim, is required to be granted leave to file a written statement. The intention of legislature in enacting Rule 9 is to meet the said situation and not to enable the plaintiff to file subsequent pleading by way of a replication.”
9. The above decision appears to be a lone voice that was rendered in the peculiar circumstances of that case with no need of treating the case of Mohammed Abdul Gafoor, supra as per incurium. This court is in respectful disagreement with the same since it militates against a broad and consistent view as to the interpretation of Order VIII Rule 9 of CPC which is held to avail to the plaintiffs as well. Yet another reason for not treating this case as having the precedential value is that it misses the true meaning and intent of the provision of Rule 9 which employs the expression “by way of defence to a set-off or counter-claim shall be presented” and by sheer logic, such a defence can be put forward only by the plaintiff inasmuch as a set-off or a counter-claim filed by the defendant partakes the character of the plaint qua the plaintiff. An argument to the contrary cannot be sustained except by straining the language of this Rule which is founded on the principles of natural justice. An otherwise interpretation would put the plaintiff to some disadvantage of meeting the case of the defendant that emerges from the set-off or counter-claim. Thus this decision ignores the text, context and intent of the said provision and therefore lacks the binding force.
10. This apart, a plain reading of the said Rule gives a right to the plaintiff to file Additional Pleadings “by way of defence to set-off or counter-claim” which obviously will be filed by the defendants. Denial of such right which the Parliament has guaranteed to the plaintiffs cannot be readily inferred from the text and context of this Rule which has been construed by three Co-ordinate Benches of this Court during a span of a little less than half a century i.e., from the days of Dayananda Sagar Case in 1972. Upsetting such a long standing legal position may put the litigants to difficulty and therefore is not desirable.
11. The impugned order proceeds on a wrong legal premises presumably because of conflicting decisions of three Co-ordinate Benches of this court on the one hand and the decision of one other Co-ordinate Bench and therefore, cannot be sustained. After all, granting of leave to the petitioner/plaintiff to file Additional Pleadings by way of Reply/Replication to the contentions in the Written Statement would prejudice none. Conversely, denial of leave is likely to prejudice the petitioner/plaintiff, although the non-denial by him of the contentions in the Written Statement would not amount to their admission at all as held by the Apex Court vide AIR 2009 SC 951, para 31.
12. In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; leave is granted to the petitioner/plaintiff in terms of his application under Order VIII Rule 9 of CPC for filing the Replication to the Written Statement of the defendant Nos.8 to 13.
13. Since the suit is of the year 2005, the learned trial judge is requested to try and dispose off the same as expeditiously as possible and in any circumstance, within an outer limit of one year.
No costs.
Sd/- JUDGE Snb/