1 SMT. HANGAMI VS. SMT. SUNGNA BAI (S.B.CIVIL WRIT PETITION NO.6347/08) Dated:- 05.01.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr.Suresh Shrimali, for the petitioner. Mr.S.L.Jain, for the respondent. 1. This writ petition is directed against order dated 16.7.08 passed by the learned Additional District Judge, Nimbahera in Civil Suit No.32/07, whereby an application preferred under Order VIII Rule 9 of the Civil Procedure Code, 1908 by the plaintiff-petitioner seeking leave to file rejoinder, stands rejected. 2. The plaintiff-petitioner preferred a suit for cancellation of the sale deed claiming herself to be joint khatedar of the land in question. The suit is being contested by the defendant- respondent by filing a written statement. It is alleged therein that the plaintiff-petitioner lodged a criminal case against the defendant-respondent, which was later compromised between the parties. It is further alleged that an agreement dated 11.3.07 was also executed by the plaintiff-petitioner in favour of the defendant-respondent wherein the correctness of the sale deed executed, has been accepted . 3. In view of the assertions made in the written statement as aforesaid, the plaintiff-petitioner preferred an application seeking leave of the court to file rejoinder to the written statement . 2 4. After due consideration, the learned trial court found that in para no. 3 of the written statement, the defendant while denying the averments made in para no. 3 of the plaint has only given his explanation with regard to the facts set out , therefore, it is open for the plaintiff to prove her own case and so also to prove that the stand taken by the defendant is false. The learned court opined that in view of the mere denial of the facts set out in the plaint by the defendant, the rejoinder sought to be filed by the plaintiff cannot be taken on record. Accordingly, the application preferred by the plaintiff seeking leave to file rejoinder has been rejected by the learned trial court by the order impugned. Hence, this petition. 5. It is contended by the learned counsel for the plaintiff- petitioner that the averments made in the para no. 3 of the written statement by the defendant cannot be said to be mere denial of the facts set out in the plaint. According to the learned counsel as a matter of fact, the stand taken by the defendant in the written statement is based on new facts and it cannot be treated to be only an explanation on behalf of the defendant. The learned counsel submitted that on the facts and in the circumstances of the case, it is absolutely necessary to controvert the facts set out by the defendant in the written statement . Accordingly, it is submitted by the learned counsel that the order impugned passed by the learned trial court suffers 3 from error apparent on the face of record. 6. Per contra, the learned counsel appearing on behalf of the defendant-respondent submitted that the learned trial court has rightly held that the averments made in para no. 3 of the written statement is only an explanation of the factual position , which does not require any rejoinder on behalf of the plaintiff. The learned counsel submitted that non filing of the rejoinder does not amount to an admission of the pleas in the written statement therefore, the plaintiff cannot be permitted to file rejoinder without assigning the cogent reasons for the same. In this regard, the learned counsel has relied upon the decision of this Court in the matter of “Ishwar Lal & Anr. vs. Ashok & Anr.”, RLW 1998(2) Raj., 730. 7. I have considered the rival submissions and perused the material on record. 8. It is true that the plaintiff cannot claim filing of the rejoinder to the written statement as a matter of right and he has to provide cogent reasons for permission to file rejoinder. In terms of the provisions of Order VIII Rule 9 CPC, the discretion is vested with the court to grant and not to grant leave to file pleadings subsequent to the filing of the written statement on the behalf of the defendant. But then, the discretion vested with the court has to be exercised judicially. 9. It is to be noticed that in the instant case, the plaintiff has 4 claimed the relief of cancellation of sale deed on the ground that she has not received the amount of consideration in terms of the sale deed executed. The defendant has taken the stand that earlier a criminal case was lodged by the plaintiff which was compromised between the parties and while accepting the correctness of the sale deed , an agreement dated 11.3.07 was executed by the plaintiff in favour of the defendant. In considered opinion of this court, the averments made by the defendant in the written statement as aforesaid cannot be said to be mere an explanation of the facts set out by the plaintiff . As a matter of fact, the defendant intend to defend the claim of the plaintiff on the basis of the new facts and a perusal of the application preferred reveals that the plaintiff intend to deny the factum of any compromise proceedings before the concerned SHO so also the existence of the agreement dated 11.3.07 alleged to have been executed by the plaintiff in favour of the defendant. Thus, on the facts and in the circumstances of the case, the plaintiff deserves to be granted leave to file rejoinder so as to controvert the assertions made as aforesaid by the defendant in the written statement . 10. Thus, in view of the discussion above, this court is of the considered opinion that the trial court has erred in rejecting the prayer of the plaintiff seeking leave to file rejoinder. 11. In the result, the writ petition succeeds, it is hereby 5 allowed. The order impugned dated 16.7.08 passed by the learned trial court is set aside. The application preferred by the plaintiff-petitioner seeking leave to file rejoinder is allowed . The learned trial court is directed to take the rejoinder filed on behalf of the plaintiff on record. No order as to costs. (SANGEET LODHA),J.