Replication to a written statement can be filed with court permission, especially for clarifying inaccuracies.

1. This revision petition is filed by the defendant in O.S. 407/1996 on the file of the I Additional Sub Court, Ernakulam. The suit was filed by the respondent plaintiff for passing a decree against the defendant for a sum of Rs. 93,06,869/- by way of compensation for alleged loss and damages caused to the plaintiff on account of the sinking of the Petroleum Gas Bullet Foundations as a result of the breach of contract and negligence of the defendant in the matter of design and supervision of the construction of Liquified Petroleum Gas Bullets Foundations. The defendant filed a written statement on 7.12.1996, wherein it was contended that the suit is purely experimental in nature and has been filed without bona fides and with a malicious intention to destroy the professional reputation of the defendant. The defendant denied all material allegations in the plaint and prayed for dismissal of the suit. Thereafter the plaintiff filed a replication on 14.3.1997. The defendant filed I. A. 2922/1997 to reject the replication filed by the plaintiff. That application was allowed and the replication was rejected. The Court took the view that if the plaintiff wants to bring out a new fact, the plaintiff should amend the pleadings. Further it was said that a replication cannot be filed without the leave of the court. Against the said order, the respondent preferred C.R.P. 474/1998. Though that C.R.P. was dismissed, it was observed that it is open to the present respondent to pursue his leave application and after getting the leave, the replication can be presented. Thereafter the respondent filed IA. 1852/1998 praying for leave to file replication to the written statement. It was stated in the affidavit supporting the petition for replication that a replication became necessary since the written statement contained incorrect averments, factual errors and misleading statements. The Court below heard the I.A. and granted leave to file replication. It is against that the present revision is filed.

3. Learned Senior Counsel Sri. P. Balagangadhara Menon appearing for the petitioner contended that 0.8 R.9 does not envisage a replication. The learned counsel relied on a decision of the learned Single Judge reported in Sujir Kesha v. Nayak v. Sujir Ganesh Nayak, 1991 (2) KLJ 37 and also a decision of the Bombay High Court in Chimawa Rachaya v. Gangawa Gangadharaya, AIR 1929 Bom. 413. O.8 R.9 deals with subsequent pleadings. It states as follows:-
"No pleading subsequent to the written statement of a defendant other than by way of defence to a 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 for presenting the same."
In the decision reported in the case of Kochukesavan Nair v. Gouri Amma, 1967 KLT 257, High Lordship Justice M. Madhavan Nair considered the question whether replication can be filed by the plaintiff under O.8 R.9. It was held as follows:-
"The Code of Civil Procedure far from pinning down the plaintiff to the plaint and the defendant to the written statement does contemplate further pleadings. It is lawful for the plaintiff to file a replication to add to his pleas already made in the plaint and the only condition therein is leave of the Court........ As the replication in this case had been accepted by the Court of trial,
the leave necessary therefore, must be assumed to have been given by it"
It was observed in that case that the word "replication" is the plaintiffs answer to the defendant's plea and "rejoinder" is the defendant's answer to the plaintiffs replication. It is lawful to the plaintiff to file a replication to add to his pleas already made in the plaint and the only condition thereon is the leave of the Court. Even in cases that requ