1 SB Civil Writ Petition No.9657/2008 Devendra Kumar & Anr. vs. Jawahar Lal. S.B. Civil Writ Petition No.9657/2008 Devendra Kumar and another. vs. Jawahar Lal. Date : 12.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.CS Kotwani, for the petitioners. Mr.Shamboo Singh, for the respondent. - - - - - Heard learned counsel for the parties. The plaintiffs'/petitioners' application under Order 8 Rule 9 CPC was dismissed by the Court of Additional District Judge (FT), Dungarpur vide order dated 31.10.2008. According to learned counsel for the petitioners, the petitioners filed suit for injunction and damages wherein the defendant/ respondent submitted not only the reply to the facts alleged by the petitioner but specifically pleaded new facts and particularly the facts which are mentioned under the heading “Additional 2 SB Civil Writ Petition No.9657/2008 Devendra Kumar & Anr. vs. Jawahar Lal. Pleas”. The paras no.1 to 6 of the additional pleas require to be given reply by the petitioner apart from the reply to the other paragraphs of the written statement filed by the respondent. Learned counsel for the respondent/defendant submitted that there are no new facts stated by the respondent in the written statement and, therefore, the trial court was right in rejecting the petitioners' application. It appears from the facts of the case that the plaintiffs/petitioners on earlier occasion filed one application under Order 8 Rule 9 CPC and that too was dismissed by the trial court vide order dated 2.8.2007 upon which the petitioners preferred SB Civil Writ Petition No.5391/2007. That writ petition was disposed of by this Court vide order dated 14.9.2007 with liberty to the petitioners to file proper and comprehensive application before the trial court again. The trial court rejected the petitioners' second application filed after obtaining leave from this Court in writ petition no.5391/2007. The trial court rejected this application on the ground that the respondent did not lead any 3 SB Civil Writ Petition No.9657/2008 Devendra Kumar & Anr. vs. Jawahar Lal. new facts and the respondent has not stated that there are new facts pleaded in the written statement. After going through the contents of the written statement (Annex.2) and the application (Annex.5), it appears that the trial court did not read the written statement and particularly the additional pleas taken by the defendant. The additional pleas and the facts pleaded in the written statement in other paragraphs certainly are new facts for which the petitioners should have been given an opportunity to file reply to the additional pleas. The trial court failed to exercise jurisdiction and wrongly rejected the application. In view of the above, this writ petition is allowed, the order dated 31.10.2008 is set aside and the application filed under Order 8 Rule 9 CPC is allowed. Rejoinder, if has not been filed yet, be filed within a period of 15 days from today. (PRAKASH TATIA), J. 4 SB Civil Writ Petition No.9657/2008 Devendra Kumar & Anr. vs. Jawahar Lal. S.Phophaliya