Malgireddy Venkata Ramana v. Thippana Narsi Reddy.

P. Prabhakar Rao, for the Petitioner; C. Prabhakar Reddy, for the Respondent.

Judgement

This Civil Revision Petition is directed against the order dated 29-10-2009 passed in I.A. No. 164 of 2009 in O.S. No. 561 of 2006 on the file of the Principal Junior Civil Judge, Miryalaguda, whereby and whereunder the learned Principal Junior Civil Judge dismissed the application filed by the petitioner/plaintiff under Order 8, Rule 9 r/w. Sec. 151, CPC.

2. The petitioner is the plaintiff and the respondent is the defendant in O.S. No. 561 of 2006. The plaintiff filed the suit for recovery of Rs. 95,000/- basing on a promissory note dated 19-12-2003 executed by the defendant for Rs. 50,000/- promising to repay the same with interest at Rs. 2.50 ps. per month per one hundred rupees. It is the case of the plaintiff that the defendant borrowed the amount for his family necessities on 19-12-2003 and executed the demand promissory note on even date promising to repay the same with interest at Rs. 2.50 ps. per month per one hundred rupees. Despite repeated demands, the defendant failed to repay the amount due under the promissory note. Hence, the plaintiff filed the suit for recovery of Rs. 95,000/- with interest thereon at the contract rate of borrowing. The defendant filed written statement admitting of his borrowing Rs. 50,000/- on 19-12-2003 and execution of the promissory note on the even date. He pleaded that the amount due under the promissory note dated 19-12-2003 and five other promissory notes has been discharged by executing a registered sale deed in favour of the plaintiff in respect of the residential house bearing Door No. 1-33. It is his further plea that the disputes between him and the plaintiff came to be placed before the elders namely Vanepally Pandu Ranga Rao, K. Ashok Kumar and M. Venkat Reddy and as per the advice of the elders, he offered his residential house bearing Door No. 1-33 towards total discharge of the amount due under various promissory notes and accordingly, he executed a registered sale deed in favour of the plaintiff and delivered possession. The elders handed over six promissory notes including the promissory note dated 19-12-2003 to him. The promissory note basing on which the suit is filed is a fabricated one.

3. Subsequently, the plaintiff filed I.A. No. 164 of 2009 under Order 8, Rule 9 r/w. Sec. 151, CPC seeking permission of the Court to file additional pleadings in the form of a rejoinder for effective disposal of the matter. It is stated in the affidavit filed in support of the petition that the additional pleadings became eminent because of the plea taken by the defendant with regard to execution of the sale deed in respect of the residential house bearing Door No. 1-33 towards total discharge of the amounts due under various promissory notes. The defendant filed counter resisting the application. The learned Principal Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that the plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action, by order dated 29-10-2009. Hence, this revision by the petitioner/plaintiff.

4. Notice before admission came to be ordered on 5-12-2009. The respondent/defendant entered appearance through a counsel.

5. Heard learned counsel appearing for the petitioner/plaintiff and learned counsel appearing for the respondent/defendant.

6. Learned counsel appearing for the petitioner/plaintiff submits that the additional pleadings on behalf of the petitioner/plaintiff became eminent because of the plea taken by the respondent/defendant in the written statement with regard to execution of the sale deed towards discharge of the amounts due under various promissory notes. A further submission has been made that the trial Court has committed an error in observing that the plea advanced by the petitioner/plaintiff in the additional pleadings is contrary to the pleadings in the plaint. In support of his submissions, reliance has been placed on the decision of this Court in Gorantla Kondalarayudu. v. Marvel Organics, 1997 (2) LS 322, Sri Gavi Matt Samsthanam, Uravakonda v. Danda Narayana Swamy, 1999 (6) ALT 800 : (1999 AIHC 4763) and S. Venkata Ramanaiah v. S. Venkateswarlu Gupta, 2009 (5) ALD 211.

7. In Gorantla Kondalarayudus case (supra), a learned single Judge of this Court has held that additional pleadings under Order 8, Rule 9, CPC include the additional plaint. Para 4 of the judgment needs to be noted and it is thus :

"4. Order 8, Rule 9 of CPC should not be confused by reading together that it permits only additional written statement by way of pleadings. Because the expression used therein is that no pleading subsequent to written statement shall be filed meaning thereby both plaint and written statement. Pleadings shall mean plaint and written statement as per Order 6, Rule 1, CPC. In that context, the pleadings and additional pleadings in Order 8, Rule 9 include the additional plaint also which can be either called as rejoinder or the reply to its real consequences."

8. In Sri Gavi Matt Samsthanams case (supra), it has been held that Rule 9 of Order 8, CPC specifically provides for filing subsequent pleadings by any of the parties with the leave of the Court.

9. In S. Venkata Ramanaiahs case (supra), it has been observed as hereunder :

"It is needless to say that Order VI, Rule 1 of the Code dealing with pleadings reads pleading shall mean plaint or written statement. Instead of filing an application praying for amendment of plaint under Order VI, Rule 17 of the Code, may be the first respondent/plaintiff was advised to file the present application under Order VIII, Rule 9 to put in subsequent pleadings by way of rejoinder."

10. Learned counsel appearing for the respondent/defendant submits that the lower Court having taken note of the proposed additional pleadings to be placed on record by the petitioner/plaintiff came to the conclusion that the additional pleadings are contrary to the plaint averments and thereby prayer sought for by the petitioner/plaintiff has been rejected and the same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.

11. Order 8, Rule 9, CPC reads as hereunder :

"Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter claim shall 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 from any of the parties and fix a time of not more than thirty days for presenting the same."

12. The primary object of subsequent pleading is to supply what has been omitted inadvertently or unintentionally or to deny or clarify the facts stated in the pleadings of the opposite party. In the rejoinder the plaintiff can be permitted to explain the additional facts, which have been incorporated in the written statement. Application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different.

13. The petitioner/plaintiff filed the suit for recovery of Rs. 95,000/- basing on a promissory note dated 19-12-2003 for Rs. 50,000/-. The respondent/defendant came up with a plea that he discharged the amount due under the promissory note dated 19-21-2003 along with the amount due under various promissory notes by executing a registered sale deed dated 25-8-2005 in respect of the residential house bearing door No. 1-33. The plea taken by the respondent/defendant in the written statement necessitated the petitioner/plaintiff to put on record the additional facts in respect of the documents stated to have been executed by the respondent/defendant in his favour. The trial Court has thoroughly misread the pleadings of the parties and thereby erred in recording a finding that the proposed additional pleadings of the petitioner/plaintiff are contrary to the plaint averments. I have gone through the proposed pleadings of the petitioner/plaintiff. They are not contrary to the plaint averments. It is only an explanatory to the plea advanced by the respondent/defendant in the written statement. It is well settled that the plaintiff can be permitted to file rejoinder to explain the additional facts, which have been incorporated in the written statement. Therefore, this is a fit case where leave has to be accorded to the petitioner/plaintiff to place on record additional facts by way of rejoinder. The order passed by the trial Court suffers from legal infirmities warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India.

14. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 29-10-2009 passed in I.A. No. 164 of 2009 in O.S. No. 561 of 2006 on the file of the Principal Junior Civil Judge, Miryalaguda, and consequently, I.A. No. 164 of 2009 stands allowed. No costs.

Revision allowed.