High Court of Uttarakhand · 2025

Sri Kanwalj eet Singh and anot her - Respondent s/ Plaint iffs - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Advocat e : Mr. Raj at Mit t al, Advocat e for t he pet it ioners - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUD GM EN T 1. Pet it ioners are defendant s in Original Suit No. 21 of 2022, filed by respondent s for cancellat ion of a Gift Deed. They are aggrieved by order dat ed 28.02.2025, passed by Civil Judge ( Junior Division) , Vikas Nagar, Dehradun, whereby plaint iff No. 2 was perm it t ed t o wit hdraw t he replica filed by him . Pet it ioners challenged t he said order in a Revision Pet it ion, which was dism issed by learned Addit ional Dist rict Judge, Vikas Nagar, Dehradun vide j udgm ent dat ed 19.05.2025.

2. Learned counsel for pet it ioners subm it s t hat perm ission t o wit hdraw t he replica could not have been grant ed, as plaint iff No. 2 had adm it t ed t hat he had knowledge about t he Will execut ed by his fat her in favour of his m ot her.

3. This Court is not inclined t o int erfere in t he m at t er. Law is well set t led t hat replica is not part of t he pleadings. Hon’ble Suprem e Court in t he case of N o o r u l H a ssan Vs. N ah a k p a m I n d r aj i t Si n g h an d o t h e r s, report ed in ( 2 0 2 4 ) 9 SCC 3 5 3 , has held as under: -

9. Before we deal with the aforesaid issue, it would be useful to refer to the provisions of CPC in relation to pleadings. Order 6 Rule 1CPC declares that pleading shall mean a plaint and a written statement. Rule 9 of Order 8 specifically edicts that no pleading 1 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. Though, however, the court may at any time require a written statement or additional written statement.

10. In Anant Construction Ltd. v. Ram Niwas [Anant (P) Construction (P) Ltd. v. Ram Niwas, 1994 SCC OnLine Del 615 : (1994) 31 DRJ 205] , the High Court of Delhi, in an exhaustive judgment authored by R.C. Lahoti, J. as his Lordship then was, dealt with the terms “replication” and “rejoinder”, as is commonly used for subsequent pleadings, as also as to when leave for filing subsequent pleading may be granted by the court. After referring to various legal texts including Corpus Juris Secundum, it was observed : (SCC OnLine Del paras 12-14) “12. A more detailed rather exhaustive statement of law is to be found in Corpus Juris 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 defence by way of avoidance will be exercised in favour of granting the application where the new matter, if true, will constitute a defence 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 State and in some 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 defence. 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 contrary, plaintiff 2 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)

13. 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.

14. 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 counterclaim 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”.” (emphasis supplied)

11. Having observed so, a distinction between a plea requiring amendment of the plaint and a plea sought to be introduced by way of a replication was noticed as under : (Anant Construction case [Anant Construction (P) Ltd. v. Ram Niwas, 1994 SCC OnLine Del 615 : (1994) 31 DRJ 205] , SCC OnLine Del para 17) “17. 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 defence. 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 v. Sri Krishna Sinha [M.S.M. Sharma v. Sri Krishna Sinha, 1958 SCC OnLine SC 11 : AIR 1959 SC 395] , their 3 Lordships refused to consider a plea raised in rejoinder for the first time, observing : (SCC OnLine SC para 33)

33. … The case of bias of the Chief Minister (Respondent 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.’ ” 12. Finally, the Court summed up its conclusions as under : (Anant Construction case [Anant Construction (P) Ltd. v. Ram Niwas, 1994 SCC OnLine Del 615 : (1994) 31 DRJ 205] , SCC OnLine Del para 24) “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 IA 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) IAs 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 counterclaim 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 plea 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 cause 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.” (emphasis supplied) 4 The order sheet of Trial Court has been enclosed

4. wit h t he writ pet it ion. There is not hing t o indicat e in t he order sheet t hat t he replica was filed by plaint iff No. 2 wit h t he leave of t he Court .

5. Learned counsel for pet it ioners refers t o an order dat ed 05.04.2023, passed by Trial Court which indicat es t hat replica was accept ed on t he file. Mere accept ance of t he replica on record will not am ount t o perm ission or leave t o file replica. The writ pet it ion t hus fails and is dism issed.

6. However, pet it ioners shall be at libert y t o confront plaint iff No. 2, based on t he st at em ent , if any, m ade in t he replica in quest ion. _______________________________ M A N OJ K UM A R TI W A RI , J. Dt : 10.07.2025 Mahinder MAHINDER SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b 8c2f031a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35 DC4626D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH 5