The court clarified that under Order VIII Rule 9 CPC, filing a proposed replica is not a prerequisite for seeking leave to file a replication in response to new facts raised by the defendant.

JUDGEMENT

1. Petitioner has invoked supervisory jurisdiction of this Court, under Article 227 of the Constitution of India, for quashment of an order dated 09.06.2023, passed by learned Sub Judge (Special Mobile Magistrate), Kathua ["trial Court"] in a Civil Suit titled "Mulkh Raj v. Dheeraj Singh and Ors.", vide which, an application preferred by him, in terms of Order VIII Rule 9 of the Code of Civil Procedure, 1908 ["CPC"] came to be dismissed.

2. Petitioner and respondents, hereinafter shall be referred, as per their status in the Suit i.e. as plaintiff and defendants respectively.

3. As factual narration of the controversy in the present case would unfold, a Civil Suit came to be preferred in the trial Court, by the plaintiff for declaration, declaring him as exclusive owner in possession of land, measuring 06 kanals 19 marlas, comprising Khasra No. 1136, situate at village Durang, Kathua, by way of prescription and adverse possession, with a consequential prayer for Permanent Prohibitory Injunction, restraining the defendants from disputing his rights over the said property or evicting him fro m the suit land without adopting due procedure established under law or interfering in his possession over the same.

4. A detailed written statement came to be filed by the defendants. After filing of the written statement, plaintiff moved an application in the trial Court, under Order VIII Rule 9 CPC, seeking leave of the Court to file replica to the written statement of the defendants on the ground that defendants in Para-2 of their written statement had alleged that one Nathu was also owner of the suit land and since no document in support of alleged ownership of said Nathu was placed on record, therefore, same was required to be properly explained and replied by him by way of replication. According to the plaintiff, defendants, by way of written statement, had introduced completely a new case, which if not allowed to be answered, would put the parties to the multiplicity of proceedings. This application came to be dismissed by the trial court, vide impugned order primarily on the ground that plaintiff has come up with a simple application, for leave from which it cannot be assumed as to what stand he intends to take with respect to the assertion made by the defendants in para-2 of their written statement. Learned trial court is of the view that since plaintiff has not filed proposed replica along with leave application, it was not in a position to conclude as to whether grant of leave would amount to allow the plaintiff to set up a new controversy, contrary to the stand taken in the suit.

5. Plaintiff has assailed the impugned order primarily on the ground that learned trial court has failed to exercise the jurisdiction vested in it and has passed the impugned order in a casual and mechanical manner and without application of mind to the facts and circumstances of the case and losing sight of the scope and object of Order VIII Rule 9 CPC. According to the plaintiff, filing of proposed replica is not a condition precedent for preference of an application under Order VIII Rule 9 CPC. It is contention of the plaintiff that in the application for leave, it was specifically pleaded that since defendants in paragraph 2 of the written statement had alleged that one Nathu was also owner of the suit land, but no such document was placed on record, it was only the said fact which was required to be replied by him for just decision of the case.

6. Heard arguments and perused the record.

7. While, Mr. Jagpaal Singh learned counsel appearing for the plaintiff, has reiterated the grounds urged in the memo of appeal, Ms. Supriya Chauhan, on the other side, has defended the impugned order by contending that filing of proposed replica is a condition precedent to an application in terms of Order VIII Rule 9 CPC and since proposed replica was not filed by the plaintiff, it was not possible for the trial Court to conclude as to what stand plaintiff inten