A rejoinder that explains an inadvertent mistake in the plaint is not inconsistent with the plaint and can be permitted by the court under Order 8 Rule 9 of the Civil Procedure Code.

GOPAL RAO EKBOTE, J.

( 1 ). THIS revision petition arises from an order of the Chief judge City Civil Court secunderabad given on 24th September, 1964. The plaintiff filed an application to permit her to file a rejoinder. The defendant resisted this petition. The lower Court, after hearing the parties, allowed the petition by the order under revision. The principal contention of Sri K. A. Muktadar, the learned Counsel for the petitioner, is that since the rejoinder is inconsistent with the facts alleged in the plaint the lower Court was wrong in permitting such a rejoinder to be filed as it would be violating Order 6, rule 7 Civil Procedure Code.

( 2 ) IN order to appreciate the implications of this argument, it is necessary to mention a few facts. The plaintiff in paragraph 3 of her plaint stated:" On 8th July, 1954 the defendant for good and valuable consideration executed in England a promissory note in favour of Mr. Gille Goudchau for the sum of £8,381 sterling exclusive of the interest for value received agreeing to pay the said sum together with interest twelve months after the said date of execution either to the said Mr. Gille Goudchau or order. "in paragraph 5 of the plaint, interest at 6 per cent per annum is claimed from 8th July, 1954, the date which the promissory note bears. The notice issued by messrs. King and Partridge, Solicitors and Advocates from Madras on 22nd May, 1958 on behalf of the plaintiff states:". . . . . . . . you executed a promissory note on 8th July, 1954 in favour of the said Mr. Gille Goudchau for the sum of £8,381 exclusive of interest for value received and payable 12 months after the said date. . . . . . . . . . . . . . "the defendant in his written statement averred :" The said defendant was not in England on the date the said promissory note is alleged to have been executed and as such he could never have executed the said promissory note. "earlier, he has said:" This defendant did not execute on 8th July 1954 or on any other date the said promissory note in England or elsewhere in favour of Mr. Gille Goudchau for the sum of £8,381 Sterling, or any other sum whatsoever. . . . . . . . . . . . "the plaintiff asserting that she realised the mistake in making an averment in the plaint that the promissory note was executed on 8th July, 1954 filed an application under Order 6 rule 17, Civil Procedure Code, for amendment of the plaint. Along with the application, an affidavit also was filed. That petition was resisted by the defendant characterising it as not a bona fide application. The learned Chief judge City Civil Court, Secunderabad dismissed the petition holding that the application was not made bona fide. A revision petition was carried to this Court against that order. Our learned brother, Narasimham, J. , by his order dated 20th september, 1963 thought that " the amendment prayed for would appear to be unnecessary " and dismissed the revision petition. He, however, made an observation that " If the plaintiff seeks to meet the allegations in the written statement she might file a rejoinder. " when the matter went back to the trial Court, the petitioner filed the present application out of which this revision petition arises for filing a rejoinder. In the petition, seeking permission to file the rejoinder, it is stated:" The suit promissory note is dated as 8th July, 1954 which was the date on which the account was made up and the amount was found due. The date of the execution of the suit promissory note was mentioned in paragraph 3 of the plaint as 8th July, 1954 as the suit ex facie indicates. On further clarification from the plaintiff herein I was informed that the suit promissory note was executed on the 23rd July, 1954 although it was dated as 8th July, 1954. "it is on these facts that the petitioner sought permission to file the rejoinder. This petition, as stated earlier, was resisted by the defendant. The learned Judge in his order under revision noted the rival contention

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