SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. -1- SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. DATE OF ORDER : - 5.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. Arun Bhansali, for the petitioner. Mr. Chandra Lal Mehta, respondent no.1 present in person. Mr. Vinay Jain, for the respondents. <><><> At the request of respondent no.1 the matter is heard finally in view of the fact that the application of the respondent no.1 was allowed by the trial court, which is challenged by the petitioner, who opposed the application in the trial court. The trial court vide impugned order dated 14.10.2008 allowed the application filed under Order 8 Rule 9 CPC and took on record the rejoinder filed by the plaintiff. According to learned counsel for the petitioner, the plaintiff in his plaint in para no.3 clearly stated that property of plot no.29(c) of Madhuban Colony, Udaipur was purchased by the sale proceeds of the ancestral property of SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. -2- Pyar Chand situated in village Railmagra of Tehsil Rajsamand. In rejoinderr the plaintiff has changed his case and also prayed relief altering his original relief which was claimed in the original plaint. It is also submitted that even plaintiff wants to withdraw his admission about the petitioner-defendant no.1 being wife of Madan Lal by filing rejoinder. It is also submitted that the trial court has not considered the application properly and without application of mind has allowed the application of the plaintiff filed under Order 8 Rule 9 CPC. The respondent-plaintiff submitted that the plaintiff filed rejoinder only to the facts which was pleaded by the defendant in his written statement and also took the plea that earlier he was not aware that there could not have been second legally wedded wife of Madan Lal in the life time of his first wife. It is also submitted that marriage of Madan Lal with Rani Mehta was void ab-initio as his first wife Dhapu Devi was alive. It is also submitted that he altered his relief only because of the fact that because of subsequent knowledge of some facts his share altered. It is also submitted that it is not necessary that rejoinder be SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. -3- confined to the pleas taken in the written statement. The respondent relied upon the judgment of the Punjab and Haryana High Court delivered in the case of Kashmir Kaur Vs. Bachan Kaur reported in 2000(2) CCC 375 (P&H) 375 wherein it has been held that replication is not confined to additional pleas taken in the written statement and plaintiff has also a right to file reply to the written statement as a whole. I considered the submissions of learned counsel for the petitioner and respondent no.1 who appeared in person and argue the matter. It appears from the impugned order that the trial court has not properly considered the pleas taken in the rejoinder separately, which should have been done looking to the facts of the case. So far as plea of defendant that he is owner of the property and the property in question is his self-acquired property, the plaintiff wants to submit rejoinder relating to the fact how property in question is not defendant's property was in fact joint property. The defendant can certainly file rejoinder for these facts but whether the pleading in rejoinder is within that limit is SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. -4- required to be examined by the trial court before the additional pleading can be allowed. So far as raising of the other pleas are concerned, they are required to be separately considered as there are certain admissions in the original plaint with respect to the relations of Dhapu Devi and Rani Mehta with Madan Lal and whether the plaintiff could have withdrawn the said admission or could have explained the admission and whether for that purpose, the amendment in the plaint is necessary or he could have raise these please in the rejoinder? The trial court should also have considered whether the relief can be altered by filing the rejoinder only without amending the plaint and two different reliefs can remain in existence one in the plaint originally submitted and another prayer in the rejoinder. In view of the above reason, the writ petition of the petitioner is allowed. The impugned order dated 14.10.2008 is set aside with the direction to the trial court to decide the application filed under Order 8 Rule 9 CPC afresh before 15.1.2009 as the next date in the trial court is already fixed on 12.1.2009 as stated by the respondent plaintiff. The respondent-plaintiff submitted that he has come from the SBCWP No.9852/2008 Smt. Rani Mehta Vs. Chandra Lal Mehta & Ors. -5- United State of America and he has filed affidavit, therefore, he may be cross-examined during his stay in India as he is staying in India till end of month of Jan., 2009. For that purpose, the respondent may submit appropriate application before the trial court seeking his cross- examination on an early date, which may be decided by the trial court by 20.1.2009. The date is already fixed by the trial court as 12.1.2009, therefore, there is no need to fix the date by this Court for appearance of both the parties before the trial court. (PRAKASH TATIA), J. c.p.goyal/-