IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No.631 of 2008 Reserved on: 13th July, 2009 Date of Decision : 3rd August, 2009 Ashok Chopra …petitioner-plaintiff. Versus: Neelam Rana …Respondent-defendant. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. R. L. Sood, Sr. Advocate with Mr,.Arjun Lal, Advocate For the respondent : Mr. G. C. Gupta, Sr. Advocate with Mr. Ashish Jamalta, Advocate SANJAY KAROL, JUDGE. Plaintiff has filed the present petition under Article 227 of the Constitution of India, assailing the order dated 2.9.2008 passed by the Addl. District Judge (Fast Track Court), Solan, H.P., wherein the plaintiff’s application for amendment of the replication filed in Civil Suit No.10FTC/1 of 2007/08 titled as Ashok Chopra v. Neelam Rana, stands dismissed. The plaintiff filed an application dated 25.11.2007 under Order 6 Rule 17 read with Section 151 CPC, seeking amendment of the replication. The defendant/respondent herein opposed the same, inter alia, on the ground that the replication 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 did not form part of the pleadings, hence, the Court had no authority to pass orders allowing the application. The trial Court dismissed the application on the ground of maintainability for the reason that neither had the plaintiff filed any written application seeking permission nor was any permission granted by the Court permitting him to file the replication. Hence, the replication not being part of the pleadings could not be amended. While holding so, the Court referred to and relied upon the view taken by various High Courts in the following decisions:- Bhagat Ram & Ors. vs. Bachana & Ors. 2008(2) Civil Court Cases 620 (H.P), M/s. Anant Construction (P) Ltd. v. Ram Niwas 1995(1) Civil Court Cases 348 (Delhi), B. Rajamani vs. Mrs. Azhar Sultana & ors. 2005(2) Civil Court Cases 696 (A.P.), Mohd. Shafi Bakshi vs. Krishna Bansal 1993(2) Rent Control Reporter 527, Swaran Kaur vs. Harjit Singh 2000(2) C.C.C. 477 (P&H). I have heard the learned counsel for the parties and also perused the record. In my view, findings of the Court below are not only perverse but contrary to record. The provisions of Order 8 Rule 9 CPC does not stipulate filing of any written application seeking leave of the Court to file subsequent pleadings. The power of the Court is not circumscribed by any written application and such power to 3 grant leave can either be suo motu or even on an oral prayer of either of the parties to the lis. The Apex Court in Kailash vs. Nanhku & Ors. 2005(4) SCC 480 has held as under:- “All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, are pertinent:- "The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. …….Justice is the goal of jurisprudence __ processual, as much as substantive.” 4 In State of Punjab and Anr. v. Shamlal Murari and Anr. (1976) 1 SCC 719, the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." In Ghanshyam Dass and Ors. v. Dominion of India and Ors. (1984) 3 SCC 46, the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub-serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.” The aforesaid view has further been reiterated by the Apex Court in Rani Kusum vs. Kanchan Devi & Ors 2005(6) SCC 705. For deciding the controversy in issue, the relevant orders passed by the Court below are necessarily required to be reproduced for proper appreciation:- ‘8.8.2007:Present: Sh. Sudhir Thakur, Adv. for the plaintiff None for the defendant. It is 10.25 a.m. be called again. Called again: Sh. Sudhir Thakur, Adv. for the plaintiff Sh. M.P. Kanwar, Adv. for the defendant. 5 Written statement filed. Copy supplied. Cost paid. Put up on 27.8.2007 for replication. sd/- Supdt. Grade-I District Judge, Solan. 27.8.07:Present: Sh. Sudhir Thakur, Adv. for the plaintiff Sh. M.P. Kanwar, Adv. for the defendant. Replication not filed. Put up for filing replication if any, and filing of proposed issues on 18.9.2007. Sd/- Reader 18.9.07:Present: Sh. Sudhir Thakur, Adv. for the plaintiff Sh. Ram Rattan, Adv. for the defendant. Replication not filed. It is stated by the learned counsel for the plaintiff that the replication to be prepared by the Senior lawyer Shri R. L. Sood, Advocate and it has not been received. He prays for adjournment. Allowed as a last opportunity. Put up on 29.9.2007 for replication and filing of proposed issues. Sd/- District Judge, Solan. 29.9.07:Present:Sh. Vikas Rajput, Adv. for the plaintiff Sh. G. C. Gupta, Sr. Advocate with Mr. M.P. Kanwar and Deepak Gutpa, Advs. for the defendant. Replication filed. Adjournment prayed for filing the proposed issues. Put up on 3.11.2007. Sd/- District Judge, Solan.” Evidently, the Court had permitted the plaintiff to file the replication which was also taken on record without any 6 objection or demur on the part of the defendant. Importantly, order dated 29.9.2007 was passed in the presence of the learned senior counsel who appeared on behalf of the respondent herein. Record further reveals that the issues were subsequently framed and before the plaintiff could lead his evidence, application seeking amendment of the replication was filed. The objection that the replication, in the instant case is not part of a pleading was taken for the first time only in the reply. The respondent never assailed the earlier orders. Therefore, the Court erred in recording that no permission had been granted by the Court to file any replication. The application was totally maintainable and the plaintiff could be permitted to amend the same. The question as to whether the replication is part of the pleading and can be amended, infact is no longer res integra as this Court in Bhagat Ram & Ors. vs. Bachana & Ors. 2008(2) Civil Court Cases 620 (H.P) has held as under:- In addition to the pleas raised before the trial Court Sh. G. D. Verma has raised another plea that amendment to the replication cannot be permitted as it is not an amendment to the pleadings. This contention is based on the definition of pleadings as given in Order 6 Rule 1 wherein pleadings have been defined to mean plaint or written statement. I shall deal with this argument first. The Civil Procedure Code does not envisage the filing of any pleadings other than plaint or written statement. It is only under Order 8 Rule 9 CPC that there is power with the 7 Court to allow any party to file pleadings subsequent to the written statement of the defendant other than by way of defence to a set-off or counter claim. It is obvious that once permission is given under Rule 9 of Order 8 to file subsequent pleading then this pleading is a pleading within the meaning of Order 6 Rule 1 as well as Order 6 Rule 17 CPC. In view of the decision rendered by this Court, with which I am in agreement, I am not reverting to the divergent view taken by the other High Courts on this question. Emphasis, however, has been made by Mr. G. C. Gupta, learned Senior Advocate on the decision rendered by the learned Single Judge of the Delhi High Court in M/s. Anant Construction (P) Ltd. v. Ram Niwas 1995(1) Civil Court Cases 348. In my considered view, it does not strengthen the defendant’s case at all. The conclusions deduced by the Court in the said judgment are reproduced as under:- “24. To sum up: (1) ‘Replication’ and ‘rejoinder’ have well defined meanings. Replication 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 of the I.A. to the counsel for the opposite party is a notice of application. Reply, if any may be filed in 8 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, muchless 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 scrutinized plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing plea by way of confession and avoidance. (6) A plaintiff seeking leave of the court has to present before it the proposed replication. ON applying its mind the court may grant or refuse the leave. (7) A mere denial of defendant’s case by plaintiff needs no replication. The plaintiff can reply on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. 9 (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings. (10) A plea which is foundation of plaintiff’s case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.” In the present case, permission had been granted, hence, the ratio would not apply in the facts of the present case. The respondent did not assail the orders passed by the court below. Therefore, the impugned order dated 2.9.2008 needs to be set-aside. Since the Court below had not considered the application on merits, hence, a direction is issued to decide the same in accordance with law, at the earliest. The interim order dated 26.11.2008 is vacated and the parties are directed to appear before the concerned Court on 10.8.2009. Record be immediately sent back along with the copy of the order. The Court shall decide the application on merits, after hearing the parties, uninfluenced of any observations made hereinabove. The petition stands allowed. ( Sanjay Karol ), Judge. 3rd August, 2009 (rana)