This order allows an application seeking leave to file a replication in the underlying civil suit. The court set aside the lower court's dismissal based on the erroneous view that a counter-claim is mandatory for such filing under CPC Order VIII Rule 9.
Set aside the order dismissing the application and allow the application for leave to file the replication.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941
OP(C).No.106 of 2018
(IN RESPECT OF THE ORDER IN IA.NO.3826/2017 IN O.S.NO.39/2016 ON THE FILES OF PRINCIPAL SUBORDINATE JUDGES' COURT, THIRUVANANTHAPURAM)
PETITIONER/PLAINTIFFS:
P. RAVEENDRAN PILLAI AGED 66 YEARS, S/O.PARAMESWARAN PILLAI, SAMANUAYAM, BELLHEAVEN GARDENS, KOWDIYAR,THIRUVANANTHAPURAM.
BY ADVS. SRI.R.MANOJ SMT.MEREENA JOSEPH
RESPONDENT/DEFENDANT:
RAMAN PILLAI
S/O.VELAYUDHAN PILLAI,AGED 61 YEARS,MANAGING PARTNER,SHYLA MANOR APARTMENT,JAWAHAR NAGAR,THIRUVANANTHAPURAM-695037. PRESENTLY AT THORN HILL, P1, CHERRY BROOKE, AUSTRALIA-2126. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, PRASANTH, S/O.RAMACHANDRAN PILLAI, AGED 40 YEARS, DHANYA BHAVAN, B.P.NAGAR, HOUSE NO.166,VILAPPIL VILLAGE, THIRUVANANTHAPURAM-695033.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(C).No.106 of 2018
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J U D G M E N T
The petitioner herein is the plaintiff in OS.No.39/2016 of Principal Subordinate Court, Thiruvananthapuram. The respondent/defendant filed a written statement traversing the various allegations mentioned in the plaint. Thereafter, the plaintiff filed a replication along with IA.No.3826/2017, seeking leave of the court to file the replication. This application was dismissed by Ext.P4 order, which is impugned in this OP(C).
application on the ground that the defendant has not
OP(C).No.106 of 2018
3
raised a counter-claim or set-off. Evidently, the court proceeded as if Order VIII Rule 9 CPC, enabled the plaintiff to file a replication only when the defendant has raised the counter-claim or sought set-off. It seems to be an erroneous proposition of law, since Order VIII Rule 9 provides that, no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court. Evidently, in cases wherein there is no counter-claim set up or set-off pleaded, a replication can be filed with the leave of the court. This is settled by the decisions in Sunil and Vasanth Vs. Tata Ceramics Ltd., (1999 KHC 48) and Sujir Keshav Nayak Vs Sujir Ganesh Nayak (1991 KHC 497), wherein it has been held that replication in cases other than by way of defence to a set-off or counter-claim can be filed only with the leave of the court. Evidently, reason given by the court below is not sustainable. It seems that the petitioner herein has made out valid reasons for receiving the replication. Having considered this, I am inclined to
OP(C).No.106 of 2018
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set aside Ext.P3 order and allow IA.No.3826/2017. The replication will stand received on file and the court below
shall proceed in accordance with law.
OP(C) is allowed.
Sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy// PS to Judge
OP(C).No.106 of 2018
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.39/2016 ON THE FILES OF THE PRINCIPAL SUBODRINATE JUDGES COURT,THIRUVANANTHAPURAM DATED 1/3/2016
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS NO.39/2016 ON THE FILES OF THE PRINCIPAL SUBORDINATE JUDGES COURT,THIRUVANANTHAPURAM DATED 13/10/2017
EXHIBIT P3 TRUE COPY OF THE REPLICTION FILED BY THE PLAINTIFF IN OS NO.39/2016 ON THE FILES OF THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM
EXHIBIT P4 TRUE COPY OF ORDER IA.NO.3826/2017 IN OS NO.39/2016 ON THE FILES OF THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM.
RESPONDENT'S/S EXHIBITS NIL
2 issues framed by the court
Whether a plaintiff can file a replication without a counter-claim or set-off by the defendant under Order VIII Rule 9 CPC.
Whether an order dismissing an application for leave to file a replication when no counter-claim exists is sustainable.
Colour shows how this judgement treated each authority
Sunil and Vasanth Vs. Tata Ceramics Ltd.Relied on¶24
Sunil and Vasanth Vs. Tata Ceramics Ltd., (1999 KHC 48)
Sujir Keshav Nayak Vs Sujir Ganesh NayakRelied on¶24
Sujir Keshav Nayak Vs Sujir Ganesh Nayak (1991 KHC 497)
1 provisions across 1 enactments
P. RAVEENDRAN PILLAI
RAMAN PILLAI
SUNIL THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
