The

petitioner

aggrieved

by

the

order

dated

30.05.2022 passed on I.A.No.13 in O.S.No.1/2020 on the

file of Senior Civil Judge J.M.F.C., Laxmeshwar.

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Brief facts leading rise to filing of this writ

petition are as under:

The petitioner filed a suit in O.S.No.1/2020 for the

relief

of

partition

and

separate

possession.

The

respondents

filed

separate

written

statement.

The

petitioner filed an application seeking leave of the Court to

file rejoinder. The said application was opposed by the

respondents by filing objections. The trial Court after

hearing the parties, dismissed the application. Hence, this

writ petition.

Learned counsel for petitioner submits that the

petitioner has filed an application seeking leave of the

Court to file rejoinder to the written statement in order to

avoid multiplicity of suit and for deciding the controversy

involved in the suit. The trial Court has dismissed the

application solely on the ground that the respondents have

not made out any counter claim against the petitioner.

Hence, the question of filing replication/rejoinder would

not arise. Hence, the reasoning assigned by the trial Court

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is improper. In order to buttress his arguments, he placed

reliance on a decision of the Co-ordinate Bench of this

Court in the case of Amalgamated Bean Coffee Trading

Vs. Zarir Minoo Bharucha and another reported in ILR

2005 KAR 2089 and also in W.P.No.62019/2012 disposed

of on 17.08.2021. Hence, he prays to allow the writ

petition.

Per contra, learned counsel for respondents

submits that when the respondents have not sought any

counter claim, question of filing replication/rejoinder would

not arise. The trial Court was justified in passing the

impugned order. Hence, he prays to dismiss the writ

petition.

Heard and perused the records and considered

the submissions of the learned counsel for the parties.

It is not in dispute that the petitioner has filed

a suit for the relief of partition and separate possession

against the respondents. The respondents filed separate

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written statement. The petitioner filed an application

seeking leave of the Court to file rejoinder to the written

statement filed by the respondents. The Code of Civil

Procedure, 1908 (hereinafter referred to as 8C.P.C.9) does

not explicitly provide for a filing of 8rejoinder9 or

8replication9 as the term is not legally defined. However,

the Court in exercise of its jurisdiction is empowered to

grant a leave for the filing of a rejoinder to allow a party to

furnish the clarifications regarding additional facts/issues

that may have been raised by the opposite party in the

written statement. Filing of a rejoinder is also essential to

explain the issues and project the correct position of the

party with respect to the new submissions averred by the

other party in its pleading. Therefore, a rejoinder may

include response to the new facts raised through the

affidavit filed by the party. Order VIII Rule 9 of C.P.C.

gives power to file an additional written statement. The

expression 8additional written statement9 has not been

defined in the C.P.C. According to a legal dictionary, the

term 8written statement9 means a pleading for defence.

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The above rule reads, <No pleading subsequent to the

written statement of a defendant other than by way of

defence to set off or counterclaim 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 or additional

written statement from any of the parties and fix a time of

not more than thirty days for presenting the same.

7.

The issue involved in this writ petition is

squarely covered by the decision of this Court in

W.P.No.101208/2018 disposed of on 09.09.2022 and

W.P.No.62019/2012 disposed of on 17.09.2021.

8.

In view of the above discussion, the impugned

order is liable to be set aside. Accordingly, I proceed to

pass the following:

ORDER

Writ Petition is allowed.