Ideally in a civil suit the party is required to state all the material facts in its pleading on which its claim rely. The Code of Civil Procedure does not explicitly provide for a filing of “Rejoinder “or Replication” as the term is not legally defined. However, the Hon'ble Court in exercise of its jurisdiction is empowered to grant a leave for the filing of a Rejoinder to allow a party to furnish clarifications regarding additional facts/issues that may have been raised by the opposite party in the written statement. Filing of a Rejoinder is also essential to explain the issues and project the correct position of the party with respect to the new submissions averred by the other party in its pleading. Therefore, a Rejoinder may include response to the new facts raised through the affidavit filed by the party.
Order VIII Rule 9 in the Code of Civil Procedure gives power to file an additional written statement. The expression ‘additional written statement' has not been defined in the Civil Procedure Code, 1908 (C.P.C). According to a legal dictionary, the term ‘written statement' means a pleading for defence. The above rule reads, “No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counterclaim 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 or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”
Thus, pursuant to this section the adjudicating authority, i.e., tribunal or court may allow filing of rejoinders to ensure that no prejudice is caused to the other party and to also necessitate deciding on the real controversy between the parties.
The rulings in the below-mentioned judgments sum up the views of various courts which provide valuable guidance on what constitutes as an essential consideration in filing of a rejoinder.
ANANT CONSTRUCTION (P) LTD. VS. RAM NIWAS. (HC OF DELHI; 1994)1
In this case, the court observed that, “The plaintiff may also feel the necessity of joining additional pleading to put forth his positive case in reply to the defendant's case, but he shall have to seek the leave of the court by presenting the proposed replication along with an application seeking leave to file the same. A plea which is foundation of plaintiff's case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected, cannot be introduced for the first time by way of replication.”
HINDUSTAN CONSTRUCTION VS MAZGAON DOCK LTD. (HC OF BOMBAY; 1998)2
Bombay High Court observed in this case, “As for the plea that the award would be vitiated on account of nonobservance of rules of natural justice, all the relevant if already on the record do not possess a problem. As noticed, it was the bounden duty of the petitioners to plead all the facts which were necessary for establishing their claim in the petition. The purpose of a rejoinder is not to fill in the gaps left by the petitioners in their pleadings, in the petition.”
STATE OF RAJASTHAN AND ORS. VS. MOHAMMED IKBAL AND ORS (HC OF RAJASTHAN; 1999)3
Furthermore, the principles of filing a rejoinder was summarized most effectively in this case wherein the HC of Rajasthan laid down the following principles:
“a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint.
b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.
c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.
d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.
e) Application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17 (Amendment of pleadings), CPC as both are contextually different.”
MUKUT RAJ LAXMI AND ORS. VS. JITENDRA SINGH AND ORS. (HC OF RAJASTHAN; 2015)4
In another decision of the HC of Rajasthan, the ratio laid down stated that, “Wide discretion is conferred on the court in granting leave to a plaintiff for filing subsequent pleadings. Well, it is true that in the guise of subsequent pleadings, a plaintiff cannot be allowed to set up a new case or incorporate certain inconsistent pleadings but then, plaintiff's right to file replication to meet with some of the new facts averred in the written statement is clearly permissible under Order VIII Rule 9 CPC.”
Further, it was observed that “If in the written statement, defendant has incorporated certain additional pleas including the plea of adverse possession, maintainability of the suit and limitation, such pleas in strict sense may not be a defence in the nature of set off or counter claim but are certainly in the nature of new facts, which if not controverted, can prejudice the cause of the plaintiff.” Being a correctional jurisdiction, it is required to be exercised wherein it is found that orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
“The ratio decidendi of the legal precedents on which heavy reliance is placed cannot be disputed but then the principles enunciated therein are required to be applied in the backdrop of facts and circumstances of an individual case and there cannot be any straight-jacket formula.
While considering the prayer of the plaintiff to file rejoinder, the nature of suit, the reliefs craved for, and the pleas sought to be raised in the written statement are of great significance. It is in that background; the court is required to adopt a realistic and pragmatic approach rather than pedantic and idealistic approach.”
It can thus be seen that for an adjudicating authority to allow leave sought by parties for filing of a rejoinder, it will ensure that the plea raised is not a fresh plea but in furtherance of cause of action filed in the application. It will also confirm that the basis of Statement of Claim is not altered or changed, and that the opposing party gets full and sufficient opportunity to reply/rebut to the pleading and no prejudice is caused to the other party. It must be recorded in definite finding that pleas sought to be raised in the rejoinder are neither in the nature of setting up a new case nor containing inconsistent pleadings.
With due consideration to the above-mentioned requirements, the adjudicating authority usually adopts a realistic and pragmatic approach rather than pedantic and idealistic approach to appreciate the facts of each case.
1 1994 (31) DRJ 205.
2 1998 (2) Bom CR 490.
3 AIR 1999 Raj 169
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