GLEN FREDRIC PICARDO Vs. RODNEY PICARDO

JUDGEMENT

(1.) Petitioner has instituted a suit for partition and separate possession on 20.04.2002 against the Respondents. 1st Defendant having died, his legal representatives have been brought on record. The legal representatives of 1st Defendant have filed written statement on 17.10.2008, resting their case on a Will, said to have been executed-by the mother of the Petitioner in favour of the deceased 1st Defendant. The Petitioner filed I.A. No. 7 on 21.04.2009 under Section 151, Code of Civil Procedure, seeking leave of the Court to file replication to the written statement filed by the legal representatives of deceased 1st Defendant. The legal representatives of the 1st Defendant filed objections to I.A No. 7 on 30.05.2009. The Petitioner filed a memo on 06.02.2010 to treat I.A. No. 7 as one having been filed under Order VIII, Rule 9, Code of Civil Procedure The trial Court, upon consideration, did not find merit in I.A. No. 7 and hence the same was rejected. Aggrieved, the Plaintiff has filed this writ petition.

(2.) Sri H.S. Vivekananda, learned Counsel appearing for the Petitioner, firstly contended that, the trial Court has misread and misdirected itself with regard to the scope of Rule 9 under Order VIII of Code of Civil Procedure Secondly, the decision in the case of Amalgamated Bean Coffee Trading Co. Ltd. v. Zarir Minoo Bharucha and Anr., 2005 ILR(Kar) 2089, was not correctly analysed. Thirdly, replication can be filed to the written statement for not only denying the pleading in the written statement but also for clarifying the facts and by holding otherwise, the trial Court has committed irrationality and illegality.

(3.) Sri J. Kanikaraj, learned Counsel appearing for the Respondent No. 1 on the other hand contended that, Order VIII, Rule 9 does not complete a reply to the written statement of the Defendant from the Plaintiff. He contends that, by obtaining leave of the Court, a written statement or an additional written statement can be filed by the Plaintiff, if there is by way of defence to the suit, a set-off or counter-claim and not otherwise. He contends that, in the defence filed to the instant suit, there is neither a set-off nor any counterclaim and hence the prayer in I.A. No. 7 being misconceived was rightly rejected by the trial Court.