IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10269 OF 2009 BHP Engineers Pvt. Ltd. ..... ..... ...Petitioner V/s BHP Maritime Ltd. & Anr. ..... ..... .Respondents. Mr.F.E.Devitre a/w Mr.Jimmy Avasia i/by Dastur Dadhich & Kalambi, Adv. for the petitioner. Mr.Bharat Beriwal, Adv. for the Respondent No.1. Mr.R.M.Patne, AGP for the respondent NO.2. CORAM: A.P.DESHPANDE, J. 10th December, 2009. PC: Mentioned. Not on board. Heard. Rule. Rule returnable forthwith. Taken up for hearing by consent of both the parties. The present petitioner is original plaintiff who instituted a suit against the respondent claiming various reliefs. In the said suit an application for temporary injunction was filed. The application was partly allowed by the trial court. Against that part of the order passed by the trial court which goes to reject the prayer made by the petitioner miscellaneous civil appeal came to be filed. In the said appeal the respondent tendered reply to the memo of appeal. The present petitioner tried to tender rejoinder to the reply with a view to bring to the notice of the court that the respondent had taken definite stand before the trial court and by filing reply in the appeal the respondent has deviated from the said stand taken before the trial court. The rejection of rejoinder by first appellate court has given rise to filing of 1 this petition. The impugned order reads thus: “Heard both parties. There is no provision to file rejoinder to the reply of respondent, otherwise there will be no ending process. Hence rejoinder is not accepted.” 2. According to the learned senior counsel appering for the petitioner the only reason for rejection of the rejoinder is that there is no provision which permits filing of rejoinder. It is submitted that the first appellate court has failed to consider the reason as to why rejoinder was being filed. It is next contended that it is the practice of this court to permit filing of rejoinder. It is submitted that no prejudice whatsoever would be caused to the respondent in case rejoinder is permitted to be filed on record. It is also stated that if the respondent is so interested he should also be permitted to file sur rejoinder. The submission is that if the rejoinder is not permitted to be taken on record same would prejudice the petitioner/appellant in as much as the contradiction in the stand taken by the respondent could not be properly and effectively brought to notice of the court. Per contra, learned counsel for the respondent has submitted that there is an impediment in the way of the petitioner in filing of rejoinder and the same is emboded in order VIII rule 9 of Code of Civil Procedure. In his submission no pleadings subsequent to the written statement of defendant other than by way of defense to set off or the counter claim can be permitted except with the leave of the court and the court may grant leave on such terms as it may think fit and proper. Applying the same analogy the submission is that there is no right in the petitioner to file rejoinder and if he wants to file rejoinder leave of the court is necessary. It is submitted that the provision of order VIII rule 9 would govern the miscellaneous appeal where in rejoinder is attempted to be 2 tendered. Perusal of the order passed by the court below show that the only reason recorded for refusing filing of rejoinder is absence of a provision permitting the same. What is relevant to note is that if there is no specific provision dealing with the given subject which is procedural in nature then the court can always have recourse to inherent powers under section 151 of Code of Civil Procedure. In my view, technicalities ought not to obstruct the ultimate goal of dispension of justice. Procedure is a tool to achieve the end result viz. dispension of justisce. As I am of the clear v iew that permitting filing of rejoinder would in no way cause any prejudice to the respondent and rather it would advance the cause of justice I see no reason as to why the prayer ought not be granted. Even assuming that leave of the court was necessary as contended by learned counsel for the respondent while tendering rejoinder the learned counsel for the petitioner has orally prayed for the same. In the result writ petition is allowed. The impugned order dated 7.11.2009 is quashed and set aside. The petitioner is permitted to file rejoinder to reply of the respondent. The respondent is permitted to file sur-rejoinder by 31.12.2009 on record. The first appellate court shall proceed to decide the miscellaneous appeal in accordance with law after taking into consideration the rejoinder and the sur-rejoinder which respondent proposes to file. 10.12.2009. 3