'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.
"PROCEDURE is but the machinery of law after all- the channel and means whereby law is administered and justice reached. It strangely departs from its proper office where in place of facilitating, it is permitted to obstruct and even to extinguish the legal rights and is made to govern where it ought to subserve''-said Lord Penzance. And here is a practice, not even procedure, having no sanction in law (at least none brought to my notice), which has provably outlived its utility and which by experience has been found obstructing the smooth flow of justice, far from facilitating it. It must be done away with; and sooner the better.
(2) This is a suit for specific performance of a contract for sale filed in the year 1982. Twelve years have passed. The suit is yet to witness commencement of its trial; thanks to the loose practice of filing replications /rejoinders which has assumed a vide currency without having any foundation in the rules of procedure or in CPC.
(3) There are two sets of defendants: defendants No. 1 to 4 and defendants No. 5 to 6. Two separate written statements were filed in the year 1983. The defendant No.4 filed yet another written statement of his own. The plaintiff filed replications to each of the written statements. Replications so filed are nothing but mere denials of all the averments made in the written statement. Each of the averments made in the written statement has been reproduced in the replication and then denied. The recording of evidence was to commence in January, 1990. It had to be deferred for want of an original document before the Court. And then there has been a flood of applications; each application followed by a reply and by a replication; each step accompanied by an adjournment for the purpose.
(4) I would not refer to such of the applications which have been disposed of. Suffice it to refer, as it is necessary to do, to I.A. NO. 1699/93 which is an application under Order 6 Rule 17 Civil Procedure Code filed on 30.10.92 by defendants No. I to 3 seeking an amendment in their written statement. Time in routine was allowed for filing reply to the application and then replication too. There were a few adjournments. Reply was filed but not replication. On 20.7.93 prayer for amendment in the written statement was opposed by the plaintiff solely on the ground of its having been moved belatedly. The Court allowed the application by imposing costs. An amended written statement was also filed by defendant No. 1,2 and 3 which was taken on record. In routine, the case was adjourned for filing replication, if any, to the amended written statement. The plaintiff has filed a replication. It is an old story retold. All the averments made in the written statement have been restated in the replication accompanied by denial thereof. Inas much as the replication was not filed within the time of two weeks allowed by the Court, Counsel for defendants No. 1,2 and 3 has vehemently opposed the replication filed by the plaintiff being taken on record not only on the ground of delay but also on the ground that replication contains a.few pleas which are inconsistent with the replication filed by the plaintiff earlier. It is also submitted that the replication filed by the plaintiff should have been confined to the plea permitted to be introduced in the written statement by way of amendment and plaintiff cannot exploit the opportunity for the purpose of filing replication twice over to the same written statement.
(5) The point at controversy has been seriously argued at the Bar. The present case provides a just opportunity for examining the law and practice relating to replications and rejoinders, especially in Delhi High Court ( Original Side). In the case at hand valuable time of the Court has been wasted in adjournments enabling filing of reply and replication to a simple application for amendment in the written statement. The proposed amendment was nothing but clarificatory in nature to the plea already available in the written statement. When the application did come up for hearing, it was opposed solely on the ground of delay which could have been done even without filing a written reply. Every I.A. is not supposed to be contested by filing a written reply and certainly not by filing a replication. It will depend on the nature of contents of the I.A. if it really stands in need of written reply for being contested.,
(6) A practice has developed in the High Court of Delhi of filing rejoinders/replications. Counsel appearing for the parties in contentious matters seek adjournments as of right enabling them to file rejoinder/ replication. Time and again I have asked the learned members of the bar to enlighten me on the fountain source of this practice. Does this practice have any sanction in law? Till this day none has obliged me. However, Ms Ritu Bhalla advocate invited my attention to a Practice Direction ( see Delhi High Court Rules Practice & Procedure by R.C. Khera, Iii Edn 1994, page 16). It will be referred to at an appropriate place.
(7) Sitting on the original side, I have experienced bottlenecks being "I created in smooth progress of cases by this practice. Replications are being filed by the plaintiffs to every written statement filed by the defendants. These replications are nothing but mere denials of the averments made in the written statements. Mostly they reproduce and restate several averments of the plaint. These replications do not serve any utility. They merely add to the bulk of the file and increase the job of the Judge going through the pleadings. Then there are some cases where unscrupulous plaintiffs exploit the opportunity of filing replication for the purpose of introducing a case inconsistent with the case set out in the plaint, to illustrate, while the plaint seeks to challenge a transaction as vitiated by fraud, the replication introduces a case of the transaction having been vitiated by misrepresentation. While the plaint alleges title in the plaintiff by virtue of succession, the replication sets out a case of acquisition of title under a will. This results in confusion and serious embarrassment at the trial. All this is over and above the adjournments perpetuated for the purpose of filing the rejoinder/replication. 7.1 In court proceedings, the terms - rejoinder and replication - are being loosely used as interchangeable terms or synonyms, which they are not. 7.2 Strangely enough, not only replications are filed by the plaintiffs to the written statements, even simple interlocutory applications such as those under Order 6 Rule 17, Order 13 Rule 2, Order 26 Rule 9 Civil Procedure Code are insisted on being supplemented by replications by the applicants on replies being filed by the opposite parties. Ordinarily such applications are supposed to be disposed off on the first date of hearing even without awaiting for a reply unless it be considered necessary by the court. 7.3 These rejoinders/replications perpetrate adjournments, avoidable otherwise and contribute colossal delay in hearing and disposal of matters, far from expediting the trial. More often then not distinction between introducing a plea by way of amendment of pleading and introducing plea by rejoinder/replication is being lost sight of. Opportunity of filing rejoinder/replication is being exploited to avoid the necessity of amending the plaint, even if necessary. This deprives the defendant of an opportunity of filing his counter to the plea raised by the plaintiff. If the plaint is amended, the defendant would have a right of incorporating pleas by way of consequential amendment in his written statement or by filing additional written statement to the plea introduced in the plaint by way of amendment. The defendant does not have any opportunity of joining additional pleadings to the pleas introduced for the first time by the plaintiff in his replication.
(8) Order 6 of the Code of Civil Procedure deals with pleadings generally. Pleading shall mean plaint or written statement. The pleadings are supposed to set out material facts. They are to be verified. 8.1 Order 7 deals with the plaint. Order 8 deals with written statement. Rule 3 of order 8 enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit. An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted. Rule 2 enjoins the defendant to specifically plead new facts. 8.2 Order 8 Rule 9 provides that no pleadings subsequent to the written statement of a defendant other than by way of defense to a set off or counter claim shall be presented except by leave of the court and upon such terms as the court thinks fit. The Court may any time require a written statement or additional written statement from any of the parties and fix a time for presenting the time. 8.3 Pleadings by way of rejoinder/replication are not to be found statutorily contemplated by the Code of Civil Procedure.
(9) It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same. As already stated, a non specific or evasive denial in written statement may be taken as an admission of plaint facts. A failure to file Ws would enable the Court pronouncing judgment against the defaulting defendant. However, a plaintiff is not to be treated similarly. Every material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.
(10) BLACK'S Law Dictionary, 6th Edn, defines replication as pleading in common law made by the plaintiff in an answer to the defendant's plea; and a rejoinder as a second pleading in common law on the part of the defendant being his answer to the plaintiff's replication. (see pp 1288(1) and 1300 (1). 10.1 Osborn's Concise Law Dictionary ( 7th Edn.) defines pleadings as under:
"PLEADINGS:- Written or printed statements delivered alternately by the parties to one another, until the question of fact and law to be decided in an action have been ascertained i.e. until issue is joined. The pleadings delivered (a) by the plaintiff, (b) by the defendant, are as follows:(l)(i) statement of claim;(ii) defense, 2(i) reply. There also exist 2(ii) rejoinder, 3(i) surrejoinder; (ii) rebutter; (4) surrebutter; but they are seldom, used. No pleading subsequent to reply may be served without the leave of the Court."
"REPLICATION; reply. If the plaintiff desires to deliver a reply, he must deliver it within fourteen days from the service of the defense (Ord.18). If no reply is served there is implied joinder of issue on the defense. "
10.2 Wharton's Law Lexicon (14th Edn) defines 'replication' as a term for a plaintiff's answer to a defendant's plea ( Page 869, Col-1). 'Rejoinder' is defined as a defendant's answer to the plaintiff's reply ( page 852, Col.2) 10.3 Where plaintiff wishes to offer affirmative matter in answer to affirmative plea of the defendant and involving another transaction consistent with the plaintiff's position as the original pleader, he must reply; this being the purpose of a "replication". A replication in pleading is the plaintiff's answer or reply to the defendant's plea or answer. ( See Words &: Phrases, Permanent Edn Vol 37, P 24, Col.2)
(11) In Halsbury's Laws of England Vol 36, law as to pleading has been stated vide paras 53 and 55. What the plaintiff may in appropriate circumstances serve on the defendant is called a reply. No pleading subsequent to a reply or a defendant's counter claim may be served except with the leave of the Court. Pleading subsequent to a reply preserve their traditional name i.e. rejoinder,
(12) 1 Below para 54 it is stated that a plaintiff who serves a reply should either specifically deny every allegation in the defense which he does not admit or join issue upon defense. A reply is not necessary if the plaintiff merely desires to join issue on a defense unaccompanied by a counterclaim, for in these circumstances, he can rely on the automatic joinder of issue. (See pp 42-43). 11.2 Law as to confession and avoidance in pleadings is stated vide para 32, as under :-
"CONFESSION and avoidance :- Where a party contends that, assuming the facts alleged to be true, nevertheless the factual situation which prima facie arises does not bind him, this contention must be expressly and clearly raised. A plea of this kind is called a confession and avoidance. In effect it confesses or admits that the allegations of the other party are true, but seeks to avoid the legal inference that would otherwise be drawn from the ad- mission by setting out fresh facts to show that in the circumstances that inference should not be drawn. A party should observe great caution in pleading a confession and avoidance, except as an alternative to a traverse of the allegations of the other party, for if this is the sole plea with reference to those allegations, the party raising the plea is bound by his confession, even if it later becomes clear that the facts were not correctly alleged by the other party."
(13) A more detailed rather exhaustive statement of law is to be found in Corpus Jurisdiction SECUNDUM. It would be useful to extract and reproduce the following paragraphs:
"A reply or replication is purely a defensive pleading, the office or function of which is to deny, or allege facts in avoidance of, new matters alleged in the plea or answer and thereby join or make issue as to such new matters. (para 184) No reply or replication is necessary where the issues are completed by, and no new matter is set up, in the plea or answer. (para 185 a.) At common law a replication is necessary where a plea introduces new matter and concludes with a verification; but under the codes, practice acts, or rules of civil procedure of a number of states a reply to new defensive matter is not necessary or is necessary only when ordered by the court. A reply to a counterclaim is generally necessary; but under some code provisions no reply or replication is required in any case. (para 185 b.(1)) The discretion which the court possesses, under some codes or practice acts, to direct the plaintiff, on the defendant's application, to reply to new matter alleged as a defense by way of avoidance will be exercised in favor of granting the application where the new matter, if true, will constitute a defense to the action and granting the order will prevent surprise and be of substantial advantage to the defendant without prejudice to the plaintiff. [ para 185 b.(ii) ] A replication, however, is unknown in the practice of a few states and in such states is not permitted. So too, under a statute providing that there shall be no reply except in enumerated situations, a reply is not permissible in a case not within one of the exceptions. Indeed, generally, in jurisdictions wherein pleading is governed by statutory provisions, plaintiff has no right to file a reply when a reply is not required by statute or order of court and a reply filed in a case where no reply is required is to be treated as a nullity, unless and to the extent that, it constitutes an admission by plaintiff, as discussed infra para 204. Under the common law system of pleading, plaintiff may, at his election, file a replication to a special plea setting up an affirmative defense On the other hand, it is proper to reject a replication to pleas which merely traverse allegations of the declaration and set up no new matter. Where the plea concludes to the country, plaintiff cannot reply with any new matter but must either accept it by a similiter or demur. So a good special traverse can be answered only by joining issue thereon and not by filing a replication. para 191 ]
(14) Decided cases in India use the term rejoinder loosely for a reply or replication filed by the plaintiff in answer to the defendant's plea. Strictly speaking a reply filed by the plaintiff ( when permissible) is a replication. A pleading filed by the defendant subsequent to replication is a rejoinder.
(15) A replication is not to be permitted to be filed ordinarily, much less in routine. A replication is permissible only in three situations: (1) when required by law; (2) when a counter claim is raised by the defendant; (3)when the Court directs' or permits a replication being filed. The Court may direct filing of a replication when the court having scrutinised the plaint and the written statement feels the necessity of asking the plaintiff to join specific pleadings to a case specifically and newly raised by the defendant in the written statement. The plaintiff may also feel the necessity of joining additional pleading to put forth his positive case in reply to the defendant's case but he shall have to seek the leave of the court by presenting the proposed replication along with an application seeking leave to file the same. The court having applied its mind to the leave sought for, may grant or refuse the leave. Ordinarily the necessity of doing so would arise only for 'confession and avoidance'.
(16) A few illustrations would make the position clear.
(17) 1 The plaintiff files a simple suit for recovery of money based on an instrument dated 1.1.94. The defendant in his written statement pleads the payment dated 30.6.94. If the plaintiff merely denies the payment made by the defendant, he need not file a replication. He will be presumed to have denied the plea of payment. Court will frame an issue on the plea of payment placing the onus on the defendant. However, if the plaintiff admits the payment dated 30.6.94 but proposes to avoid the effect of payment by pleading that payment was towards some other loan advanced by the plaintiff say on 1.9.93 and so the payment pleaded by the defendant does not satisfy the suit claim then he has to file a replication. 15.2 In a suit relating to title to a property the defendant denies and disputes the plaintiffs title by setting up a plea of gift or adoption. If the plaintiff merely denies the gift or adoption he need not file a replication. If he admits the factum of adoption or gift and yet seeks to get rid of its legal effect by alleging the same to be illegal on certain grounds, the illegality has to be pleaded by filing a replication. 15.3 In a suit for partition between the members of the Joint Hindu Family, the plaintiff pleads three items available for partition. The defendant without filing a counter claim, sets up a plea that there is 4th item of property belonging to the Joint Hindu family which having not been included by the plaintiff in the claim for partition, the suit was bad. The plaintiff merely denying the joint family character of the 4th property need not file a replication.
(18) Whenever a replication is filed it has to be confined only to such part of the written statement the plea raised wherein demands replication.
(19) A distinction between a plea requiring amendment of the plaint and a plea sought to be introduced by replication shall have to be kept in view. A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff's cause of action cannot be introduced through a replication. As already stated replication is always a defensive pleading in nature. It is by way of confession and avoidance or explanation of a plea raised in defense. It will be useful to quote from Halsbury's Laws of England (Vol 36, para 62, p 48):-
"62.Necessity for amendment. The fact that a party may not raise any new ground of claim, or include in his pleadings any allegation or fact inconsistent with his previous pleadings, has been considered elsewhere. In order to raise such a new ground of claim, or to include any such allegation, amendment of the original pleading is essential."
17.1 In M.S.M. Sharma vs. Sri Krishna Sinha, , their Lordships refused to consider a plea raised in rejoinder for the first time, observing:
"THE case of bias of the Chief Minister ( respondent No.2) has not been made anywhere in the petition and we do not think it would be right to permit the petitioner to raise this question, for it depends on facts which were not mentioned in the petition but were put forward in a rejoinder to which the respondents had no opportunity to reply."
(20) A plea inconsistent with the case set out by the plaintiff in the plaint can never be permitted to be raised in replication. So also a plea in rejoinder cannot be inconsistent with the case set out by the defendant in his written statement. Any subsequent pleading inconsistent with the original pleading shall be refused to be taken on record and if taken 'shall be liable to be struck off and taken off the file.
(21) Ms Ritu Bhalla advocate, as stated in an earlier part of this judgment, pointed out a Practice Direction which reads as under :-
"REPLICATION: When the defendant has filed a written statement, the court may call upon the plaintiff to file a written statement in reply. Under Order Viii Rule 9, the court has power to call upon both parties to file written statement at any time and this power should be freely used for elucidating the pleas when necessary, especially in complicated cases. In simple cases, however, examination of the parties, after the defendant has filed his written statement is generally found to be sufficient."
19.1 This direction is to be found contained in Chapter 1 Practice in the Trial of Civil Suits. This chapter applies to subordinate Courts and not to High Court ( Original Side). Be that whatever it may, the scope of the above said provision is limited, as the language of the direction itself suggests. It refers to order 8 Rule 9.1t vests power in the Court to call upon the parties to file written statement meaning thereby additional pleading by way of replication or rejoinder) for elucidating the pleas when necessary, especially in complicated case. The direction does not confer any right on a party to file a subsequent pleading and to insist on hearing being adjourned enabling filing of replication. The practice direction does not in any manner run counter or in departure with the legal position discussed hereinabove. 19.2 Any practice direction or a provision in rules governing original side of High Court contemplating replication has not been brought to my notice.
(22) Whenever a pleading is allowed to be amended an opportunity has to be afforded to the opposite side to meet the new case by filing an additional statement ( see Note 14 below Order 6 Rule 17 Civil Procedure Code by Manohar & Chitley). If the plaint is amended, written statement has to be amended so as to incorporate a denial or defendant's plea, as the case may be, in view of Order 8 Rule 3 and 5 CPC. If the written statement is amended, the plaint need not necessarily be amended as the plaintiff may rely on the rule of assumed traverse. If a replication many become necessary, leave may be allowed to file the same but confined to the plea newly introduced in the written statement by way of amendment.
(23) A few decisions by different High Courts, especially by Delhi High Court which have come to notice may be dealt with. 21.1 The law of pleadings does not require a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, , Laxmansing. v. Laxminarayan Deosthan. Air 1948 Nagpur 127, Bank of Behar Ltd v. Madhusudan Lal, Air 1937 Patna 4281. 21.2 In Amarjeet Singh vs Bhagwati Devi1982 (12) Rlr 156, this Court has held a pleading to mean plaint and written statement only. A plaintiff can claim relief on the basis of pleas in the plaint and not on pleas in the replication. 21.3 In Roshan Lal vs. Prem Prakash, Air 1980 Patna 59, it was held :
"A subsequent pleading by way of defense to a set off or counter-claim can be filed by the plaintiff as a matter of right, but the provisions do contemplate the filing of other pleading as well but by the leave of the Court and invest the Court with the widest possible discretion. Either party may, with the leave of the Court file a supplementary written statement, but at the same time the law does not compel the plaintiff to file any rejoinder to the allegations made in the written statement and the failure of the plaintiff to file such a rejoinder, cannot be treated as an admission of the plea in the written statement. The plaintiff is entitled to join issues with the defendant with respect to all those allegations which are made in the written statement and may lead evidence in rebuttal of those allegations notwithstanding the fact that he does not file any rejoinder."
21.4 Moti Ram vs Baldev Krishan is a single bend
decision of this Court. It only says replication permitted by the Court to. be filed forms part of the pleading besides the plaint and the written statement, which strictly constitute pleading under Order 6 Rule I CPC. The High Court of Punjab has in Mateshwar Dayal Vs Amar Singh, 1983 P&H 197 and Jag Dutta V. Savitri Devi.
held that replication is a part of the pleadings and the plea raised therein cannot be overlooked. All these decisions were cited by the learned counsel for the petitioner. Suffice it to say that replication if allowed by the court becomes a part of the pleadings . To this extent there can be no dispute.
(24) Two decisions which can be cited as taking a view to the contrary and which also have come to the notice of this Court, may be discussed. 22.1 Abdul Hamid v. Nur Mohd is a single bench
decision of this Court wherein the principle of Order 8 Rule 5 Civil Procedure Code has been extended to non-traverse in the replication of averments made in the written statement. A reading of the decision indicates that this Court has no where laid down the necessity of filing of replication to the written statement. It was a landlord tenant suit seeking ejectment. The tenant had pleaded landlord having recently let out other vacant accommodation of his. A replication was filed. There was no specific denial of the plea raised in the written statement. Denial was evasive and not specific. In this background, this Court observed : "This kind of non traverse has to be really put against the landlord." This Court was laying down the law not on replication but on the rule of non-traverse in pleadings by reference to Order 8 Rule 5 CPC. 22.2 There is a Division Bench decision of Punjab & Haryana High Court in Salig Ram vs. Shiv Shankar, Air 1971 P&H 437, the Division Bench vide para 8 states:-
"IT is a well-settled rule that replication is a part of the pleadings and anything which is specifically stated in the replication and for the first time has to be controverter and if it is not controverter and is allowed to pass it must be assumed that the plea raised is accepted. If any authority on the point is needed, reference may be made to S.D.G. Pandarasannidi v. State of Madras ".
The report does not reveal any reference to any rule of law or practice for formulating an opinion on the necessity of replication. A reading of the above quoted passage gives an impression of a well settled rule having been drawn from law laid ' down by their Lordships of the Supreme Court in the two decisions referred to. That appears to be a mistaken impression. 22.3 In Sdg Pandarasannidi v. State of Madras, the High Court had refused to consider a plea because it was not raised by the appellant in his petition. Their Lordships observed: "This reason is no doubt technically right in the sense that this plea was not mentioned in the first affidavit by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. ......." Their Lordships further observed that they were satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. 22.4 In Sheikh Abdual Sattar vs. Union of India. , vide para 13 of the written statement it was stated- "para 13 of the plaint as it stands is not admitted." This manner of drafting of written statement was adversely commented upon by their Lordships. However, the plea of the defendant was to be found specifically denied in paras 26-27 of the additional pleadings part of the written statement. That was considered enough. 22.5 None of the decisions of their Lordships referred to by the Punjab and Haryana High Court lends support to the view assumed by the learned judges to be well settled.
(25) Chapter Ix of Delhi High Court (Original Side) Rules 1967 deals with interlocutory applications. A perusal of that Chapter reveals emphasis on the counter ( to I.A.), if any, being filed not less than four days before the date of hearing and rejoinder, if any, confined strictly to matters of reply, being filed not less than two days before the date of hearing. The word 'shall' used in the relevant rules qualifies the number of days before which the reply/rejoinder is to be filed. The rules do not contemplate any reply or any rejoinder being filed necessarily to such applications as are capable of being disposed of without reply/rejoinder. The rules do not run counter to the view taken by me.
(26) 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 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. .Appreciation is placed on record of useful assistance rend erred by Shri Ishwar Sahai Sr Advocate and Ms Ritu Bhalla advocate both from civil side of High Court Bar who brought to the notice of the court quite a few aspects relevant to the issues at hand.
(27) Appreciation is placed on record of useful assistance rendered by Sh. Ishwar Sahai Sr. Adv. and Ms. Ritu Bhalla advocate both from civil side of High Court Bar who brought to the notice of the court quite a few aspects relevant to the issues at hand.
(28) In view of what has been stated hereinabove, the objection raised by the defendant is upheld. Leave to file replication dated 18.5.94 ( filed on 19.5.94) by the plaintiff is refused. Replication is directed to be taken off the file and returned to the counsel for the plaintiff. The plaintiff is, how- ever, allowed time to move a fresh application seeking leave to file a replication confined to the plea introduced by way of amendment in the written statement.
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