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2009 Supreme(Bom) 1257
BOMBAY HIGH COURT AT PANAJI, GOA
A.H. JOSHI, J.
Shri Datta Laxmikant Nayak Karmali - Petitioner
Versus
Mrs. Priya Daata Nayak Karmali and Ms. Priya Narshiv Pissurlekar - Respondent
Writ Petition No. 524 of 2009
Decided on : 23rd September, 2009
Mr. C. Mascarenhas, Advocate, for the petitioner.
Mr. V.P. Thali, Advocate, for the respondent.
Rule 9 of Order VIII of CPC cannot be used to allow a plaintiff to file a replication, and the concept of replication has no statutory support in India.
Headnote:
Replication - Marriage Petition - Order VIII of CPC - Rule 9
Fact of the Case:
The petitioner filed a Marriage Petition for annulment and dissolution of marriage. The petitioner sought leave to file a 'replication' to the written statement, citing 'new facts' brought in by the respondent. The application was rejected, leading to the petitioner challenging the order.
Finding of the Court:
The court analyzed the practice of allowing replications, the provisions of Rule 9 of Order VIII of CPC, and the principles of pleadings and evidence. The court concluded that Rule 9 of Order VIII cannot be used to give leverage to a plaintiff to file a replication, and upheld the rejection of the petitioner's application.
Issues: The main issue was whether the petitioner should be allowed to file a 'replication' to the written statement, and the interpretation of Rule 9 of Order VIII of CPC.
Ratio Decidendi: The court held that the concept of replication has no statutory support in India, and Rule 9 of Order VIII cannot be used to allow a plaintiff to file a replication. The court emphasized the principles of pleadings and evidence, and the need for adherence to the provisions of the Civil Procedure Code.
Final Decision: The petition was dismissed, and the parties were directed to bear their own costs.
A.H. Joshi, J.–Rule.
2. Rule is made returnable forthwith and heard by consent.
3. Petitioner herein has filed Marriage Petition for annulment and in the alternative dissolution of marriage, which is pending.
4. In said Petition, the Petitioner, filed an application under Rule 9 of Order VIII of CPC. By this application the Petitioner has prayed for leave of the Court to file 'replication' to the written statement. The ground pleaded for this prayer was that the respondent had brought in her written statement "some new facts", and filing of the clarificatory pleading by way of 'replication' is necessary.
5. Petitioner's application has been rejected by Order dated 4.8.2009.
6. In order to appreciate the facts, this Court has perused the Marriage Petition filed by the Petitioner and the written statement filed by the wife.
7. It is seen that the Petitioner has claimed that :
(a) The marriage was not consummated;
(b) The wife had premarriage love affair with a cousin, which she could not forget; and (c) Irretrievable breakdown of the matrimony.
8. In the written statement, the wife has denied the petitioner's version and narrated various other facts in support of her contention denying and adding facts claiming those to be within husband's knowledge in order to falsify husband's plea.
9. Perusal of draft of "replication" tendered by husband, appended to the application consists of reiteration or repetition of version contained in the Marriage Petition, some explanation and simplicitor denial of the wife's statement contained in her written statement.
10. Petitioner has, therefore, filed present Petition challenging the said Order dated 4.8.2009 averring that as his application has been rejected on the ground of want of maintainability, impugned Order deserves to be set aside, and either the prayer for filing of "replication" be allowed or the Trial Court be directed to hear and decide petitioner's application afresh and according to law.
11. Heard learned Advocates at length.
12. Learned Advocate Mr. C. Mascarenhas for the Petitioner has placed reliance on various Judgments as follows :
(1) 1925 Bombay 390 (Juvansingji Motisingji Thakor v. Dola Chhala)
(2) AIR 1999 Rajasthan 169 (State of Rajasthan and another v. Mohammed Ikbal and others)
(3) AIR 1999 Kerala 88 (Suna & Vasanth Architects and Consulting Engineers and another v. Tata Ceremics Ltd.)
(4) AIR 1977 Punjab and Haryana 68 (Jag Dutta v. Smt. Savitri Devi)
(5) AIR 1961 Patna 152 (Binda Prasad v. United Bank of India, Ltd. and others)
13. The gist of submissions for which reliance is placed on all these Judgments is as follows :
(1) That in most of the High Courts and the subordinate Courts, there exists a practice of allowing "replication" if plaintiff makes out a case and Court grants leave for explaining totally new facts brought forward by the defendant.
(2) Granting of leave to file such "replication" is permissible under Rule 9 of Order VIII of CPC.
(3) Judicial cognizance of existence such a practice is taken by various Courts and filing of a replication with leave of Court is an essential ingredient of the adversarial system, and that "replication" should be allowed in order that the "pleadings are completed" rather those are not left in a defective state.
(4) The plaintiff may with leave of Court explain by replication or a rejoinder some new facts brought by the defendant in the written statement but cannot be allowed to plead a totally new plea or a plea contrary to plaintiffs stand espoused through the plaint.
14. Learned Advocate Mr. V.P. Thali for the respondent, on the other hand, urged as follows :–
(a) In the Judgment of this Court reported in the case of Juvansingji v. Dola Chhala, 1925 Born 390, seen at page 392, certain observations emerge namely :
(i) Filing of "replication" is desirable;
(ii) if not done, 'the pleadings are left in a defective state';
(iii) The practice in High Courts in England adopted by 'English trained Lawyers' was to file "replication';
(iv) The def
