BABU BHAI KASHYAP Vs. PRAFUL CHAND CONTRACTOR

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and perused the material placed on record. By way of this writ petition, the defendant-petitioner seeks to question the order dated 29.04.2011 as passed in Civil Suit No. 8/2010 whereby the learned Civil Judge (Sr.Div.), Mount Abu, while dealing with the suit for eviction filed with reference to Sections 105 and 106 of the Transfer of Property Act, has allowed the prayer made by the plaintiff-respondent per Order VIII Rule 9 of the Code of Civil Procedure; and has permitted filing of the replication by the plaintiff.

(2.) Assailing the order aforesaid, the learned counsel for the petitioner submitted that the learned Trial Court has acted wholly illegally, has approached the entire case from an altogether wrong angle, and has committed serious errors of law leading to failure of justice where it has permitted the plaintiff to place on record the parawise reply to the written statement in the name of replication, though such a course remains impermissible in law. The learned counsel also submitted that the objections as taken by the defendant-petitioner in relation to the prayer of the plaintiff have not been dealt with and the learned Trial Court has allowed the replication without considering the record of the case. On being posed the question about the scope of interference by this Court in such a matter in its supervisory jurisdiction under Article 227 of the Constitution of India, the learned counsel for the petitioner has referred to paragraph-13 in the decision of the Hon'ble Supreme Court in Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh, 2006 3 SCC 312 and to paragraph-49 (f) and (g) in the decision of the Hon'ble Supreme Court in Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, 2010 8 SCC 329. The learned counsel also referred to the decisions of this Court in Gurjant Singh vs. Krishan Chander & Ors., 2001 1 RajLW 37, Ishwar Lal & Anr. vs. Ashok & Anr, 1998 2 RajLW 730 and State of Rajasthan & Anr. vs. Mohammed Ikbal & Ors., 1999 1 RajLW 20 and submitted that the order as passed by the learned Trial Court is beyond the scope of Order VIII Rule 9 CPC.

(3.) Per contra, the learned counsel for the plaintiff has duly supported the order impugned and submitted that the suit in question, now pending in the court of Civil Judge (Sr.Div.), Mount Abu was, in fact, originally filed in the Court of Additional District Judge, Abu Road and was registered as Civil Suit No. 2/2007; and even prior to that, a suit for eviction was filed in the year 1989 that was withdrawn on 27.02.2006 with liberty of taking recourse to the remedies under the Rajasthan Rent Control Act, 2001 ('the Act of 2001') but then, recourse to such remedies was objected against on the ground that the Act of 2001 had not been extended to the area in question and, therefore, the plaintiff was required to file the suit afresh. The learned counsel further submitted that even in this suit, when filed in the Court of Additional District Judge, Abu Road, an objection regarding pecuniary jurisdiction was taken and that was allowed by the Court at a late stage and, by the order dated 18.03.2010, the plaint was ordered to be returned for presentation in the proper Court. The learned counsel pointed out that before passing of the said order dated 18.03.2010, a similar nature replication had, in fact, been filed and the same was permitted to be taken on record by the learned Trial Court then dealing with the suit, by its order dated 10.03.2008. The learned counsel submitted that even when the plaintiff-respondent has filed the parawise replication with reference to the paragraphs of the plaint and the written statement yet, nothing new has been pleaded therein which might travel beyond the periphery of the subject matter of the suit and the pleadings as taken in the plaint and the written statement.