2008 Supreme(J&K) 195
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Swami Saran Khajuria - Appellant
Versus
Sahib Saran Khajuria & Ors. - Respondent
Civil Revision No. 81/2007
Decided On : 26 May, 2008
Advocate For Appellant: A.P. Singh
Advocate For Respondent: L.K. Sharma
Headnote:Civil Procedure Code-Order 8 Rule 9-Replica-Suit for partition pending between the parties pending-defendant amended written statement questioning the right of plaintiff to seek partition of the property on the ground that no ownership rights were conferred upon the father of the plaintiff-Plaintiff filed application seeking permission of the court to file replica only to explain the fact that the ownership of the property has since been vested with the father of the parties-Pleas taken in replica do not alter the basis of the plaint on which the plaintiff has sought partition of properly by metes and bounds-Application filed by defendant under Order 6 Rule 16 for rejection of application and for striking out the pleadings by the plaintiff liable to be rejected.
2. That during the course of trial application for amendment was made which was allowed and amended written statement was filed. In the preliminary objections the defendant has raised a plea that the land on which father of the parties raised construction was allotted to him by the State Government. It has further been averred that since the property belongs to State Government and no ownership right was conferred upon father of the parties, the plaintiff is disentitled to maintain the suit for partition. The petitioner filed an application which was granted seeking permission to file replica to the written statement. While replying preliminary para in the written statement the plaintiff-petitioner has stated that the plot allotted to the father of the parties was made for perpetuity and ownership rights had been conferred after the whole amount which was the cost of the plot was realized by the State Government. Defendant has filed an application under O.6 R 16 CPC for rejection of application and for striking out the pleadings by the plaintiff in the replica on the ground that no permission was sought by the plaintiff for filing replica and the replica filed by the plaintiff otherwise cannot be construed or treated as pleadings because plaintiff has abused the order of the court dated 6.2.2005 in introducing such a plea of facts which in law cannot be introduced and pleaded except with the permission of the court. This application was considered by the trial court. Objections to said application have been filed by the respondents whereby it has been stated that permission was granted by the court to file replica and no new plea of facts or law has been raised in the replica. According to the objections filed by respondent No. 1 the new fact raised in the written statement was that the ownership of the suit property was not conferred upon father of the parties as such no suit for partition could be filed.
3. The trial court after hearing the parties has disallowed the application of the petitioner on the ground that the proper permission was granted to the plaintiff respondent-1 on 6.2.2005. The trial court also said that no new plea of fact or law has been raised in replica and what was replied was new facts raised by defendant No. 1 in his amended statement. The application was dismissed.
4. I have heard learned counsel for the parties and examined the record.
5. On the