Advocates Appeared:
For the Appellant :Mr. Sukhdev S. Kanwal, Advocate
For the Respondent:Mr. Aditya Dassaur, Advocate

JUDGMENT :

Pankaj Jain, J. (Oral)

1. Defendants are in revision against order dated 01.10.2018 passed by Addl. Civil Judge (Sr. Divn.), Dasuya whereby the Trial Court framed additional issue on the application filed by the plaintiffs. For convenience parties hereinafter are referred to by their original position in the suit i.e. the petitioners as defendants No.l & 2 and respondents No.l to 4 as plaintiffs.

2. Plaintiffs filed suit for joint possession claiming that the property was a coparcenary property in the hands of Saroop Singh father/predecessor-in-interest of the parties. The plaintiffs being coparceners are entitled to joint possession.

3. In the written statement filed by defendants No.l to 4, they propounded WILL dated 28.04.2003 purported to be executed by Saroop Singh-predecessor-in-interest of the parties. It was further claimed that the suit property was neither ancestral nor coparcenary.

4. On the basis of pleading of the parties following issues were framed on 23.05.2016

'1. Whether plaintiff is entitled for joint possession as prayed for? OPP

2. Whether suit of plaintiff is not maintainable? OPD

3. Whether plaintiff has not come to the court -with clean hands and have concealed the material fact ? OPD

4. Whether plaintiff has no cause of action to file the suit ? OPD

5. Whether suit is no valued properly for the purpose of court fee and jurisdiction ? OPD

6. Relief'

No issue was framed qua WILL propounded by the defendants.

5. Plaintiffs filed application praying for framing of additional issue regarding WILL alleged to have been executed by Saroop Singh relied upon by defendants No.l & 2. The application was opposed by the petitioners-defendants. Vide impugned order Trial Court has allowed the same.

6. Learned counsel for the petitioners-defendants submits that after the WILL was propounded by the defendants in written statement plaintiffs opted not to file any replication. Thus the WILL was admitted by the plaintiffs. There was no need to frame issue qua the WILL as the same was never in issue.

7. Per contra learned counsel for the plaintiffs-respondents submits that after the WILL was propounded by the defendants they were required to prove valid execution thereof. Trial Court initially having failed to frame issue with respect to WILL, instant application was moved. The Trial Court has rightly allowed the same vide impugned order.

8. I have heard learned counsel for the parties and have gone through the records of the case.

9, At this stage there is no requirement to go into the merits of the main suit. The question that falls for consideration of this Court is only whether Trial Court erred in framing additional issue No.5A which reads as under

'5 .A Whether Saroop Singh executed will dated 28.04.2003 in the name of defendants No.l and 2? OPD. '

10. Order 6 Rule 1 CPC defines pleadings. Order 8 Rule 9 CPC deals with subsequent pleadings. The aforesaid provisions as contained under the Code of Civil Procedure, 1908 read as under:-

'Pleading' shall mean plaint or written statement.

Order 8 Rule 9

9. Subsequent pleadings.

No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.

11. Order 6 Rule 1 CPC thus envisages only plaint and written statement as pleadings. Order 8 Rule 9 CPC mandates that no pleadings subsequent to the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the Court. Thus replication though not pleading specifically provided under Order 6 Rule 1 CPC attains a character of pleadings when permitted to be filed by Court. Trite it is that mere non-filing of a replication would not amount to admission