A plaintiff must be allowed to file a rejoinder to address new facts introduced by the defendant, ensuring complete adjudication of the case.

JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.

2. The Petitioner is challenging the order dated 27.01.2022, passed by the learned 15^th Joint Civil Judge, Senior Division, Nagpur, below Exhibit-105, in Special Civil Suit No.642/2004, rejecting the application for leave to file rejoinder.

3. In short the case of the Petitioner is that there was a Deed of Partition, registered on 14.05.2004, in respect of property of late Bhupendranath S/o Ramchandra Nagpure, bearing Plot No.206/12, situated at Civil Lines, Nagpur. The said Deed of Partition, which was registered on 14.05.2004, have challenged by Smt. Vatsalabai wd/o. Bhupendranath Nagpurey, mother of the Petitioner, Yogeshkumar Nagpurey, Amol Nagpurey and Smt. Alpana Takhalate vide filing of Special Civil Suit No.642/2004, thereby sought decree of declaration, partition and permanent injunction stating that the same is not binding upon her, as the same having been obtained by playing fraud upon her and misrepresentation. In the said suit, eldest son Amol was joined as defendant No.1, another son Yogesh - defendant No.2, married daughter Alpana - defendant No.3 and youngest son Vinay was joined as defendant No.4. The defendant Nos.1 and 3 filed their written statement. The defendant No.4 also filed his written-statement supporting the claim filed by the original plaintiff Vatsalabai. The defendant No.2 did not file any written-statement. After the death of defendant No.1 – Amol Nagpurey, his legal representatives i.e.Respondent Nos.1(a) to 1(d) were brought on record.

4. There is a Will executed by Vatsalabai Nagpurey on 26.10.2004 in favour of Vinay Nagpurey – defendant No.4. Vatsalabai Nagpurey died on 17.08.2009. Therefore, the original defendant No.4 – Vinay Nagpurey, in light of Will, sought his transposition from array of Defendant to array of Plaintiff, which was allowed by the Court on 28.01.2016 and thereby defendant No.4 came to be transposed on record as Plaintiff, as legatee of original plaintiff. Thereafter, Respondent Nos.1(a) to 1(d) vide Exhibit-68, moved an application for seeking permission to consequential amendment in written-statement along with Counter Claim and also moved an application vide Exhibit- 83, seeking permission to raise Counter Claim in written-statement. On 12.01.2018, both the applications came to be allowed. Thereafter, application below Exhibit-87 for review of the order dated 12.01.2018 was filed. The Trial Court on 28.11.2018, allowed the application Exhibit-87, and thereby both the order passed below Exhibit-68 and 83, came to be set aside and matter was directed to be reheard to the limited extent on the aspect of point framed in the order. After rehearing, the learned Trial Court on 13.03.2019, allowed the applications at Exhibit-68 and 83 respectively and accordingly written- statement duly amended and Counter Claim was also raised by Respondent Nos.1(a) to 1(d). On 30.12.2019, the Petitioner filed written-statement to the Counter Claim raised by Respondent Nos.1(a) to 1(d). So far as an allegations made by Respondent Nos.1(a) to 1(d) in the written-statement by way of amendment, the Petitioner filed an application below Exhibit-105 under Order VIII Rule 9 of the Code of Civil Procedure , seeking leave to file Rejoinder and also copy of Rejoinder is filed along with it. It is submitted that due reason for necessity to file rejoinder is given in the application, however, the learned Trial Court rejected the said application – Exhibit-105.

5. The learned Counsel for the Respondents opposed the application on the ground that the Petitioner while filing of the written-statement to the Counter Claim, could have raised the