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Mohar Singh (Boring Wala) Son of Sri Gyan Singh Vs. Laxmi Chand Son of Sri Sugan Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 54 of 2006
Judge
Reported inAIR2006All168; 2006(3)AWC2312
ActsCode of Civil Procedure (CPC) - Order 6, Rule 17 - Order 7, Rule 14 and 14(3) - Order 8, Rule 9
AppellantMohar Singh (Boring Wala) Son of Sri Gyan Singh
RespondentLaxmi Chand Son of Sri Sugan Chand
Advocates:Divakar Rai Sharma, Adv.
DispositionAppeal dismissed
Excerpt:
.....the plaintiff has only tried to fill up the lacuna by means of the instant replica and also bring documents on record, which he failed to do so earlier, though it was in his possession at the time when the suit was instituted. replica may be taken to be part of the pleading only if it satisfied the requirement of amendment in the plaint as provided for under order vi, rule 17. the most important ingredient of amendment in pleading is permission of court granted on the grounds on which amendment may be permitted. 7 of the plaint is in respect of map and this mention of the map is regarding existence of other shops as well. it cannot be said that the plaintiff has failed to comply with the provisions of the code or judge small causes court has exceeded his jurisdiction in permitting the..........was taken by the plaintiff only in replica and not in the plaint and replica not being part of pleading plaintiff could not be permitted to adduce evidence in support of the said plea and the said evidence which had been adduced could not be taken into consideration by the court. in , it has been held that replica is part of pleading. the said authority has been referred in : air1981all78 . in a later authority of punjab and haryana high court reported in , the earlier authority of the same court of 1977 (supra) has been relied upon. in the 1977 authority of punjab and haryana high court proceedings in dispute had been initiated before rent controller. rent controller is not civil court and strict procedure of c.p.c. does not apply to proceedings before tribunals, which are not civil.....
Judgment:

Poonam Srivastava, J.

1. Heard Shri Diwakar Rai Sharma learned Counsel for the revisionist.

2. The order dated 28.1.2006 passed by the Additional District Judge, Court No. 6/Judge Small Causes Court, Muzaffar Nagar, in S.C.C. Suit No. 14 of 2005- Laxmi Chand v. Mohar Singh, is challenged in this revision.

3. The plaintiff/opposite party instituted a S.C.C. Suit for decree of eviction and possession on the ground of default in payment of rent of the disputed shop situated at Ram Rahim Market, Qasba Thana Bhawan, Pargana Thana Bhawan, district Muzaffar Nagar. The revisionist is a tenant at monthly rent of Rs. 1000/-. The plaintiff stated in the plaint that no rent has been paid after 1.1.2003. A notice was sent on 2.6.2005 determining the tenancy and demand for arrears of rent and damages was made. The plaintiff contended that the shop in question was constructed in the year 1991, therefore, the provisions of U.P. Act No. 13 of 1972 do not apply. Copy of the plaint has been annexed as annexure No. 1 to the affidavit filed in support of the Stay Application. The written statement was filed disputing the allegation of the plaint including rate of rent and stating that the provisions of U.P. Act No. 13 of 1972 are applicable. The plaintiff moved an application on 22.11.2005 seeking permission to admit the replication along with certain documents on account of reason that new facts have been brought by the defendant/revisionist in his written statement and objection were filed to the said application on 27.1.2006 which is annexed as annexure No. 4 to the affidavit filed in support of Stay Application. It was specifically objected that the plaintiff wants to bring new and additional fact and document on record by means of replication, which is not bonafide. In fact the act of the plaintiff was stated to be malafide in the objection of the revisionist. Copy of the replica and list of document said to be brought on record subsequent to filing of the written statement, have been annexed as annexure No. 5 and 6 to the affidavit filed in support of the Stay Application. The Judge Small Causes Court has allowed the said application and rejected the objection of the revisionist and has taken the replica and the documents on record, which are challenged in the instant revision.

4. Counsel for the revisionist has laid emphasis on the provisions of Order 8 Rule 9 C.P.C. which provides subsequent leading. Rule 9 Order 8 is quoted below:

[9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counterclaim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.]

Order 7 Rule 14 C.P.C, is also quoted below:

[14. Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to he filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) A document which ought to he produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit]

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory]

5. Counsel for the revisionist submits that the plaintiff has only tried to fill up the lacuna by means of the instant replica and also bring documents on record, which he failed to do so earlier, though it was in his possession at the time when the suit was instituted. In the circumstances, the court by allowing the replica to be taken on record and including the same in the pleadings, has committed material illegality and the order is sought to be quashed. It is further argued that the plaintiff has completely introduced something new, which he could do so at the time of institution of the suit. This will cause great prejudice to the merit of the case. Reliance has been placed on a decision in the case Prag Narayan Mook Badhir Vidyalaya Samiti, Aligarh through its Secretary A.N. Agarwal and Anr. v. Hukum Singh and Ors. 1997 (1) A.W.C. 279, where this Court has ruled that the pleadings which are required to be made in the plaint must be pleaded in the plaint itself and not in the replication and pleadings in the replication cannot be pressed into service for filling the gaps which have been left in the plaint.

6. The second decision relied upon by the counsel for the revisionist is State of Rajasthan v. Ishwar Dass and Ors. 1 (1996) CLT 260 which deals with the provisions of Order 8 Rule 9 C.P.C. that is subsequent pleading to written statement of defendant other than by way of defence to set off or counter claim shall be presented. The third decision relied upon is Fida Hussain v. VI Additional District Judge and Anr. 2004 (1) ARC 20. Emphasis laid is on para 11 of the said decision, which is quoted below:

Learned Counsel for the tenant-petitioner has vehemently argued the plea that the agreement of 16.1.1996 was not acted upon was taken by the plaintiff only in replica and not in the plaint and replica not being part of pleading plaintiff could not be permitted to adduce evidence in support of the said plea and the said evidence which had been adduced could not be taken into consideration by the Court. In , it has been held that replica is part of pleading. The said authority has been referred in : AIR1981All78 . In a later authority of Punjab and Haryana High Court reported in , the earlier authority of the same Court of 1977 (Supra) has been relied upon. In the 1977 authority of Punjab and Haryana High Court proceedings in dispute had been initiated before rent controller. Rent controller is not Civil Court and strict procedure of C.P.C. does not apply to proceedings before Tribunals, which are not Civil Courts. In my opinion replica by plaintiff is nothing but amendment in the plaint. Nomenclature is not decisive. Replica may be taken to be part of the pleading only if it satisfied the requirement of amendment in the plaint as provided for under Order VI, Rule 17. The most important ingredient of amendment in pleading is permission of Court granted on the grounds on which amendment may be permitted. In the instant case, it does not appear that any permission of the court was sought or granted for adding in the plaint the allegations made in the replica hence it cannot be taken to be part of the pleading.

7. I have carefully gone through all the decisions cited on behalf of the revisionist and the plaint, written statement and also the replication which has been taken on record. The grievance and objection of the revisionist are that by means of the replication, the plaintiff has tried to fill up the lacuna, which cannot be allowed by the subsequent pleading under the Code. I do not agree with the assertion of Shri Diwakar Rai Sharma, for the reasons that the plaintiff has specifically stated in paragraph No. 7 of the plaint that the disputed property was constructed in the year 1991 and since before the year 1991, the shop in question was not in existence and, therefore, U.P. Act No. 13 of 1972 is not applicable. This specific pleading has been denied in paragraph No. 7 of the written' statement stating that other shops shown in the map were in existence since before the year 1991 and in absence of any map, nothing can be said regarding the date of construction of the said shops. Subsequently, by means of the replication, the plaintiff has stated and elaborated that the map was given at the concerned police station, Town Area Committee and the same was duly sanctioned. It has specifically been stated that averment in paragraph No. 7 of the plaint is in respect of map and this mention of the map is regarding existence of other shops as well. The map and certain other documents relating to permission for construction have been attached with the said replication. In the circumstances, it is absolutely clear that the pleading regarding date of construction of the disputed shop and other shops in the same vicinity has specifically and unequivocally been pleaded in the plaint. It has also been stated that since the date of construction was in the year 1991, the provision of U.P. Act No. 13 of 1972 is not applicable. In the circumstances, by means of the replication, the plaintiff has only tried to elaborate and elucidate the pleadings already there in the plaint and bring certain documents on record after taking due permission from the court. Order 7 Rule 14(3) C.P.C. entitles the plaintiff to produce document only with the leave of the court. In the instant case, the application moved along with replication on 22.11.2005 seeking leave of the court is already on record. It cannot be said that the plaintiff has failed to comply with the provisions of the Code or Judge Small Causes Court has exceeded his jurisdiction in permitting the replica to be taken on record in absence of such a leave. In the circumstances, decisions relied up by the counsel for the revisionist are that no subsequent pleadings or document can be permitted to be brought on record without permission of the court is absolutely against the record and cannot be accepted. It is also not correct to say that new fact is being introduced by means of the replica, which has never been pleaded and only with a view to fill up lacuna. Since bare perusal of the plaint shows that specific pleadings are made regarding date of construction of the shop in question, the map showing construction of the shop along with other shops as well as applicability of the U.P. Act No. 13 of 1972, therefore, it cannot be said that the plaintiff has tried to take any aid of the replication, which will cause prejudice to the merits of the case or to the defendant/revisionist. The replication only reiterates the statement, which has been made in paragraph No. 7 of the plaint. In the circumstances, if paragraph No. 12 of the replication is read with paragraph No. 7 of the plaint, it does not make out a new or a different case.

8. In the circumstances, argument advanced on behalf of the revisionist do not have any force and I do not agree that any prejudice has been caused whatsoever. It is always open for the plaintiff to advance argument on the pleadings in respect of paragraph No. 7 of the plaint and only with a view to clarify the pleadings, replication has been filed along with application seeking leave of the court, which has been granted by the Judge Small Causes Court. It is also noteworthy that the provisions of Order 7 Rule 14(3) C.P.C. and Order 8 Rule 9 C.P.C. provide for 'the leave of the court and upon such terms as the court thinks fit' amounts to a discretion given to the court to exercise in such cases where it finds just and proper. In the instant case, perusal of the impugned order shows that it has specifically been stated that the plaintiff has made a mention of a map in paragraph No. 7 of the plaint and also applicability of the U.P. Act No. 13 of 1972, therefore, the court has carefully taken into consideration the provisions of the Code and has granted leave and accepted replica along with document on record after considering various decisions cited by the respective parties.

9. For the reasons discussed above, I do not find it a fit case for interference. The judgment does not suffer from any illegality whatsoever. The revision lacks merit and is, accordingly, dismissed in limine.


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