STATE OF RAJASTHAN Vs. MOHAMMAD IKBAL

JUDGEMENT

(1.) Instant revision impugns, the order dated October 14, 1997, of the learned Additional Civil Judge (Senior Division)-cum- Additional Chief Judicial Magistrate No. 3, Udaipur, whereby the application under Order 8, Rule 9, CPC submitted by the plaintiff-petitioners (for short the plaintiffs) was allowed and rejoinder submitted by them was taken on record.

(2.) A brief re'sume' of the facts is that Akbar Ali instituted a suit for eviction against the defendant non-petitioners (for short the defendants) on November 23, 1982. Thereafter Akbar Ali sold the property. The applicants-purchaser moved application under Order 22, Rule 10 read with Order 1, Rule 10, CPC. It was allowed by the learned trial Court. Thereafter the plaint was amended adding ground of bona fide need. The suit of the plaintiffs was decreed by the learned trial Court on November 24, 1995. The defendants-State of Rajasthan and another filed appeal before the appellate Court. The defendants moved an application under Order 6, Rule 17, CPC for amending the written statement. The learned appellate Court on March 8, 1995 allowed the application permitting the defendants to amend their written statement. Cost of Rs. 500/- was imposed on the defendants and liberty was given to the plaintiffs to file rejoinder. The case was remanded back to the trial Court under Order 41, Rule 25, CPC for framing additional issue on question of Section 80, CPC. On September 4, 1997, written statement was amended and it was averred that the plaintiffs did not serve notice under Section 80, CPC. The plaintiffs moved application under Order 8, Rule 9, CPC on September 20, 1997. The defendants submitted reply to the application. The learned trial Court allowed the application and rejoinder was taken on record vide order dated October 14, 1997.

(3.) Mr. R. L. Jangid, learned counsel appearing for the defendants made scathing criticism of the impugned order. The contention of learned counsel is that application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different. According to Mr. Jangid new pleas cannot be allowed to be introduced so as to alter the basis of the plaint. In the rejoinder the plaintiff has simply to explain additional facts mentioned in the written statement and he cannot be allowed to come forward entirely with a new case in rejoinder. Pleas inconsistent with earlier pleadings cannot be introduced by way of rejoinder.