Replication is not part of the pleading and evidence on facts stated in the replication is inadmissible.

D. K. Seth, J.

1. On 1st July, 1989, opposite parties 2 and 3 filed a suit being S. C. C. Suit No. 48 of 1989 for ejectment, arrears of rent and damages against the petitioner in the Small Cause Court, Ghaziabad. In the written statement filed by the petitioner, it was contended that U. P. Act No. 13 of 1972 is not applicable to the suit property since the house was constructed beyond the period of 10 years. The opposite parties filed a replication on 28th July, 1992 incorporating the fact that the plaintiffs had taken a loan of a sum of Rs. 80,000 from the Hindustan Development Finance Corporation, Delhi for the construction of the house on the aforesaid plot securing the said plot with the Corporation. On 28th October, 1992 in the course of examination of witnesses, which continued on 29th October, 1992, when P. W. 1. stated the fact of taking loan of a sum of Rs. 80,000 from the Hindustan Development Finance Corporation, Delhi, the defendant raised objection to this effect that since the said fact was not within the pleading, within the meaning of Order VI, Rule 1 of the Code of Civil Procedure, no evidence could be led on the said fact and the evidence so adduced was inadmissible. By order dated 16th August, 1993, the trial Court while rejecting the objection raised by the defendant held that the replication in part of the pleading and therefore the statement of P. W. 1 with regard to the fact stated above, was admissible. It is against these orders the present writ petition has been filed.

2. LEARNED counsel for the petitioner contends that the replication cannot be treated to be part of pleading, inasmuch as the Order VI, Rule 1 does not include the replication as part of the pleading. In case, any other pleading is to be relied on, the same can only be brought by means of amendment and not otherwise.

On the other hand, learned counsel for the opposite parties contends that the replication is part of the pleading since the replication has been filed in reply to the statement made in the written statement. He contended further that no objection was taken to the filing of the replication before evidence had started and that on the contrary the defendant had filed Additional Written Statement. Therefore, the objection raised by the defendant at the time of hearing cannot be sustained.

3. THE suit is governed by the provision contained in the Provincial Small Cause Courts Act, 1887. Therefore, the Civil Procedure Code is applicable only to the extent as provided in Section 17 of the said Act. Section 7 of the Code of Civil Procedure specified the provision of the Code which shall not be applied to the Provincial Small Cause Courts, while Order L of the Code supplant. Section 7 specifying the portion of the First Schedule which does not apply to the Provincial Small Cause Courts. In the facts and circumstances of the case, I am more concerned with Order L of the Code than Section 7, though, however, Order L flows from Section 7, inasmuch as body of the Code does not provide any thing with regard to the solution of the present dispute for which reference is required to be made to the First Schedule of the Code. Order L provides that the provisions enumerated there under, shall not extend to the Small Cause Courts. THE provisions relating to the frame of suit, as provided under Order II, Rule 1, has been extended by the provisions relating to the pleading has not been excepted. At the same time, the Provincial Small Cause Courts Act does not provide specifically anything with regard to the pleading. THE Civil Procedure Code applies only to the extent as provided in Section 17 of the said Act. THE real object of Section 17 is that a suit or proceedings arising out of decision of Small Cause Courts is to be governed by the Provincial Small Cause Courts Act, 1887 and not by the provisions of the Code of Civil Procedure, 1908. [ Vide Kanhaiya v. Gurwant, AIR 1962 All 514 and Brij Behari v. Lalta Prasad, AIR 1934 All. 943]