What are basic principles the court should follow while deciding an application seeking permission to file replication or rejoinder?

The principles deducible from the above discussions may be summarised thus -

a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint.

b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.

c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.

d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.

e) Application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different. {Para 9}

 IN THE HIGH COURT OF RAJASTHAN

Civil Revn. No. 1151 of 1997

Decided On: 04.03.1998

State of Rajasthan and Ors.  Vs. Mohammed Ikbal and Ors.

Hon'ble Judges/Coram:

Shiv Kumar Sharma, J.

Citation: MANU/RH/0223/1999

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Whether plaintiff can be permitted to file replication or rejoinder to written statement?

To conclude

39. Even going by the meaning of the said term given in the Black's Law Dictionary, it only defines the practice as in vogue in Courts. Going on logically or by etymology, the term 'replication' carries means repeatation or reiteration (of what was once told). This meaning is almost contrary to the practice believed to be followed in the Courts in this regard. The meaning attributed to the said term in law is solely due to the said practice alone. Therefore, what would replication mean and what is the purpose it serves has no co-relation with the cannons of justice through adversial systems as channelized by C.P.C.

40. This Court cannot be oblivious to the changes in procedural law which have undergone in recent past. Effect of amendment in the Civil Procedure Code aimed at expeditious disposal and focusing on avoiding delays has to be considered, and the scope of Rule 9 of Order VIII is not to be escalated.

41. In the result, this Court is of the considered view that Rule 9 of Order VIII can never be used as an aid to the plaintiff to file a replication or a rejoinder to the written statement.

42. Moreover, the concept of replication has no statutory support in India. Any such practice is not based on any law or practice or a tradition having force of law which is saved by law or constitution.

43. Owing to the foregoing discussion, this Court is of a considered view that by any permutations and combinations, Rule 9 of Order VIII cannot be used to give leverage to a plaintiff who wants to escalate the pleadings by bringing on record the facts which he is not permitted to bring, save and except by taking recourse to Rule 17 of Order VI of C.P.C. by way of amendment of plaint.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 524 of 2009

Decided On: 23.09.2009

Shri Datta Laxmikant Nayak Karmali Vs.  Mrs. Priya Daata Nayak Karmali, nee Ms. Priya Narshiv Pissurlekar

Hon'ble Judges/Coram:

A.H. Joshi, J.

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Basic concept of 'Replication' and 'rejoinder'

'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 or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in 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, much less 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 scrutinised 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 a 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 rely on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. (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. 

Delhi High Court

Anant Construction (P) Ltd. vs Ram Niwas on 3 October, 1994 

 Equivalent citations: 1994 IVAD Delhi 185, 1994 (31) DRJ 205, 1995 RLR 20 (1) 

Hon'ble Judges/Coram:

R.C. Lahoti, J.

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