TMI Blog1994 (10) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants: defendants No. 1 to 4 and defendants No. 5 to 6. Two separate written statements were filed in the year 1983. The defendant No.4 filed yet another written statement of his own. The plaintiff filed replications to each of the written statements. Replications so filed are nothing but mere denials of all the averments made in the written statement. Each of the averments made in the written statement has been reproduced in the replication and then denied. The recording of evidence was to commence in January, 1990. It had to be deferred for want of an original document before the Court. And then there has been a flood of applications; each application followed by a reply and by a replication; each step accompanied by an adjournment for the purpose. (4) I would not refer to such of the applications which have been disposed of. Suffice it to refer, as it is necessary to do, to I.A. NO. 1699/93 which is an application under Order 6 Rule 17 Civil Procedure Code filed on 30.10.92 by defendants No. I to 3 seeking an amendment in their written statement. Time in routine was allowed for filing reply to the application and then replication too. There were a few adjournments. Reply was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enabling them to file rejoinder/ replication. Time and again I have asked the learned members of the bar to enlighten me on the fountain source of this practice. Does this practice have any sanction in law? Till this day none has obliged me. However, Ms Ritu Bhalla advocate invited my attention to a Practice Direction ( see Delhi High Court Rules Practice Procedure by R.C. Khera, Iii Edn 1994, page 16). It will be referred to at an appropriate place. (7) Sitting on the original side, I have experienced bottlenecks being I created in smooth progress of cases by this practice. Replications are being filed by the plaintiffs to every written statement filed by the defendants. These replications are nothing but mere denials of the averments made in the written statements. Mostly they reproduce and restate several averments of the plaint. These replications do not serve any utility. They merely add to the bulk of the file and increase the job of the Judge going through the pleadings. Then there are some cases where unscrupulous plaintiffs exploit the opportunity of filing replication for the purpose of introducing a case inconsistent with the case set out in the plaint, to illustr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Rule 3 of order 8 enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit. An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted. Rule 2 enjoins the defendant to specifically plead new facts. 8.2 Order 8 Rule 9 provides that no pleadings subsequent to the written statement of a defendant other than by way of defense to a set off or counter claim shall be presented except by leave of the court and upon such terms as the court thinks fit. The Court may any time require a written statement or additional written statement from any of the parties and fix a time for presenting the time. 8.3 Pleadings by way of rejoinder/replication are not to be found statutorily contemplated by the Code of Civil Procedure. (9) It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same. As already stated, a non specific or evasive denial in written statement may be taken as an admission of plaint facts. A failure to file Ws would enable the Court pronouncing judgment against the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding subsequent to a reply preserve their traditional name i.e. rejoinder, (12) 1 Below para 54 it is stated that a plaintiff who serves a reply should either specifically deny every allegation in the defense which he does not admit or join issue upon defense. A reply is not necessary if the plaintiff merely desires to join issue on a defense unaccompanied by a counterclaim, for in these circumstances, he can rely on the automatic joinder of issue. (See pp 42-43). 11.2 Law as to confession and avoidance in pleadings is stated vide para 32, as under :- CONFESSION and avoidance :- Where a party contends that, assuming the facts alleged to be true, nevertheless the factual situation which prima facie arises does not bind him, this contention must be expressly and clearly raised. A plea of this kind is called a confession and avoidance. In effect it confesses or admits that the allegations of the other party are true, but seeks to avoid the legal inference that would otherwise be drawn from the ad- mission by setting out fresh facts to show that in the circumstances that inference should not be drawn. A party should observe great caution in pleading a confession and avoidance, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra para 204. Under the common law system of pleading, plaintiff may, at his election, file a replication to a special plea setting up an affirmative defense On the other hand, it is proper to reject a replication to pleas which merely traverse allegations of the declaration and set up no new matter. Where the plea concludes to the country, plaintiff cannot reply with any new matter but must either accept it by a similiter or demur. So a good special traverse can be answered only by joining issue thereon and not by filing a replication. para 191 ] (14) Decided cases in India use the term rejoinder loosely for a reply or replication filed by the plaintiff in answer to the defendant's plea. Strictly speaking a reply filed by the plaintiff ( when permissible) is a replication. A pleading filed by the defendant subsequent to replication is a rejoinder. (15) A replication is not to be permitted to be filed ordinarily, much less in routine. A replication is permissible only in three situations: (1) when required by law; (2) when a counter claim is raised by the defendant; (3)when the Court directs' or permits a replication being filed. The Court may direct filing of a replic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is filed it has to be confined only to such part of the written statement the plea raised wherein demands replication. (19) A distinction between a plea requiring amendment of the plaint and a plea sought to be introduced by replication shall have to be kept in view. A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff's cause of action cannot be introduced through a replication. As already stated replication is always a defensive pleading in nature. It is by way of confession and avoidance or explanation of a plea raised in defense. It will be useful to quote from Halsbury's Laws of England (Vol 36, para 62, p 48):- 62.Necessity for amendment. The fact that a party may not raise any new ground of claim, or include in his pleadings any allegation or fact inconsistent with his previous pleadings, has been considered elsewhere. In order to raise such a new ground of claim, or to include any such allegation, amendment of the original pleading is essential. 17.1 In M.S.M. Sharma vs. Sri Krishna Sinha, , their Lordships refused to consider a plea raised in rejoinder for the first time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en brought to my notice. (22) Whenever a pleading is allowed to be amended an opportunity has to be afforded to the opposite side to meet the new case by filing an additional statement ( see Note 14 below Order 6 Rule 17 Civil Procedure Code by Manohar Chitley). If the plaint is amended, written statement has to be amended so as to incorporate a denial or defendant's plea, as the case may be, in view of Order 8 Rule 3 and 5 CPC. If the written statement is amended, the plaint need not necessarily be amended as the plaintiff may rely on the rule of assumed traverse. If a replication many become necessary, leave may be allowed to file the same but confined to the plea newly introduced in the written statement by way of amendment. (23) A few decisions by different High Courts, especially by Delhi High Court which have come to notice may be dealt with. 21.1 The law of pleadings does not require a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, , Laxmansing. v. Laxminarayan Deosthan. Air 1948 Nag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of filing of replication to the written statement. It was a landlord tenant suit seeking ejectment. The tenant had pleaded landlord having recently let out other vacant accommodation of his. A replication was filed. There was no specific denial of the plea raised in the written statement. Denial was evasive and not specific. In this background, this Court observed : This kind of non traverse has to be really put against the landlord. This Court was laying down the law not on replication but on the rule of non-traverse in pleadings by reference to Order 8 Rule 5 CPC. 22.2 There is a Division Bench decision of Punjab Haryana High Court in Salig Ram vs. Shiv Shankar, Air 1971 P H 437, the Division Bench vide para 8 states:- IT is a well-settled rule that replication is a part of the pleadings and anything which is specifically stated in the replication and for the first time has to be controverter and if it is not controverter and is allowed to pass it must be assumed that the plea raised is accepted. If any authority on the point is needed, reference may be made to S.D.G. Pandarasannidi v. State of Madras . The report does not reveal any reference to any rule of law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed . (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the nee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
