Saji Koduvath, Advocate, Kottayam

Abstract

Pleadings in Nutshell

• Order VI of the Code of Civil Procedure deals with pleadings generally.
• Order VII deals with the plaint.
• Order VIII deals with written statement.
• Pleading shall mean plaint or written statement.
• The pleadings are supposed to set out material facts.
• They are to be verified.
• Rule 3 of Order VIII 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 of Order VIII enjoins the defendant to specifically plead new facts.

Order 8, Rule 9 CPC (After the Amendment Act of 2002)

• “9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim 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 for presenting the same.”
• The words, “No pleading subsequent to the written statement” shows that there is no impropriety in using the ‘general’ terms, ‘Replication’ and ‘Rejoinder’.

Order VI, Rule 17 CPC (After the Amendment Act of 2002)

• “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
• Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Order VIII, Rule 9 CPC Analysed

• Plaintiff has a right to file written statement by way of defence to a set-off or counter-claim.
• For filing a pleading by the plaintiff or defendant, subsequent to the written statement of a defendant leave of the Court is necessary,.
• Court can at any time require a written statement or additional written statement from any of the parties.
• CPC does not use the term Rejoinder or Replication; it uses only a written statement or additional written statement.

Rejoinder and Replication

• A replication is filed by the Plaintiff. It is the plaintiff’s answer or reply to the defendant’s plea or answer.
• A rejoinder is filed by the defendant. It is filed subsequent to (plaintiff’s) replication.
• In court proceedings, these terms – rejoinder and replication – are being loosely used as interchangeable terms or synonyms, which they are not. (See: Prime Properties v. Sana Lakshmi Devi (SC, 2022)
• Pleadings by way of rejoinder/replication are not to be found statutorily contemplated by the Code of Civil Procedure.
• Opportunity of filing rejoinder/replication is being exploited to avoid the necessity of amending the plaint, even if necessary.

Black’s Law Dictionary

• 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: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Wharton s Law Lexicon

• Wharton s Law Lexicon (14th Edn) defines ‘replication‘ as a term for a plaintiff s answer to a defendant s plea; and rejoinder is defined as a defendant s answer to the plaintiff s reply.

Corpus Juris Secundum

Corpus Juris Secundum lays down as regards ‘replication’ as under:

• “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. (i))
• 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) ]” (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

When Replication Permitted

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.

When Court directs a replication:

• 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.

Plaintiff can seek the leave of the court for filing replication:

• 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. (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Requirement of Replication

It is doubtful whether fault can be found with a plaintiff or defendant – for he did not file a ‘replication’, of his own (that is, when no direction from the court) whatever be the circumstance. However, in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J., authoritatively pointed out two circumstances where it is necessary to file ‘replication’.

1. The defendant denies plaintiffs title, and sets up a plea of gift.

•  If the plaintiff merely denies the gift he need not file a replication.
• If he admits the gift and pleads illegality, he has to file a replication.

2. The defendant pleads re-payment in a suit for money.

• If the plaintiff merely denies it, he need not file a replication.
• If the plaintiff admits the payment but proposes to plead that payment was towards some other loan, he has to file a replication.

Material averments in WS Presumed to be Denied – Need not file Replication.

In Anant Construction (P) Ltd. v. Ram Niwas, 1994 (31) DRJ 205, ILR 1995 2 (Del) 76, discussed the matters in detail and it was held as under:

• “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.
• (Quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81; Arun Jaitley v. Arvind Kejriwal, 2016-3 CivCC 771; 2016-230 DLT 771)

Failure to file a replication cannot be treated as an admission

Anant Construction v. Ram Niwas, ILR 1995 2 (Del) 76, continued –

• 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, AIR 1975 Mad 51, Laxmansing. v. Laxminarayan Deosthan. AIR 1948 Nag 127, Bank of Behar Ltd v. Madhusudan Lal, AIR 1937 Pat 4281.
• 21.2 In Amarjeet Singh vs Bhagwati Devi 1982 (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 Pat 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 15 (1979) DLT 90 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”.
• x x x x x x x x x x
• 24. To sum up:
• x x x x x x x x x x
• (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”. (Emphasis supplied)
• 53. In K. Laxmanan Vs. Thekkayil Padmini and Others, (2009) 1 SCC 354, the Supreme Court held that pleadings, under Order VI Rule 1 CPC consist of only the plaint and the written statement. The plaintiff could have filed a replication in respect of the plea raised in the written statement, which if allowed by the Court, would have become the part of the pleadings.
• But mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.” (quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81)

Additional Written Statement

• 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 practice is that the courts allow to file additional written statement to be filed after the plaint is amended. (Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003)
• 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.

When Subsequent Pleadings Allowed

• If the defendant introduces a new case, the plaintiff will be allowed to file subsequent pleading. (Shakoor v. Jaipur Development Authority, AIR 1987 Raj 19)
• If the plaintiff amends the plaint the defendant will be allowed to file additional Written Statement (Salicharan v. Sukanti, AIR 1979 Orissa 78).
• When it is necessary to take into account subsequent events, after the filing of the suit and to avoid multiplicity of suits. (Ramaswami Naidu v. Pethu Pillai, AIR 1965 Mad 9)
• If a minor who attains majority is dissatisfied with the pleading filed by the guardian. Shiva Kumar Singh v. Kari Singh AIR 1962 Pat 159

Denial in Pleadings and Presumed Denial

• 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.
• 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.

Amendment of Pleadings

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Supreme Court observed as under:

•  “A pleading, once filed, is a part of the record of the Court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the Court.
• Order 8 Rule 9 of CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counter-claim except by the leave of the Court and upon such terms as the Court thinks fit.
• Section 153 of CPC entitled “General power to amend” provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
• Order 6 Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter of amend his pleadings in such manner and on such terms as may be just.
• The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
• Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the Court cannot effectively exercise its power to permit amendment.
• An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on.
• It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the Court for amendment in the pleadings, as to what is proposed to be omitted from or altered or substituted in or added to the original pleadings.”

Halsbury s Laws of England

The Apex Court further pointed out the English practice – how an amendment of pleadings allowed by the Court is effectuated – as stated in Halsbury s Laws of England (Fourth Edition, Vol. 36, para 63, at pages 48-49). It reads as under:

• “63. Mode of amendment. A pleading may be amended by written alterations in a copy of the document which has been served, and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document must be prepared incorporating the amendments. If such extensive amendment is required to a writ it must be reissued. An amended writ or pleading must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge, master or registrar by whom any order authorizing the amendment was made and the date of the order: or, if no such order was made, the number of the rule in pursuance of which the amendment was made. The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red.

Amendment relates back to the date of Filing, Subsequent Pleadings Not

Our Apex Court, in P. A. Jayalakshmi v. H. Saradha,  2009-14 SCC 525 (SB Sinha, J.), observed as under:

• “Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.”

No Inconsistent  Pleadings Possible in Subsequent Pleadings

In Mohammed Ali v. Khutejatul Kubra, ILR 2001 Kar 4580, 2002(1) KarLJ 596, the Karnataka High Court has held as under:

• “6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 18 of the CPC only”.

Consequential Amendment – Judicially Recognized

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Court observed as regards ‘Consequential Amendment’ as under:

• “18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase “consequential amendment” finds mention in the decision of this Court in Bikram Singh & Ors. v. Ram Baboo & Ors. – AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party.”

Plea inconsistent with the case is not permitted in replication and rejoinder

RC Lahoti, J. pointed out in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under:

• “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.”

It is also added by Lahoti, J.

• 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.
• A replication is always a defensive pleading in nature.

New Plea Permitted in Amendment; Not in Additional Pleading

RC Lahoti, J. held in Gurdial Singh v. Raj Kumar Aneja, 2002 AIR SC 1003; 2002-2 SCC 445, as under:

• “A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
• 19. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”

In Mohammed Ali v. Khutejatul Kubra, ILR 2001 Kar 4580, 2002(1) KarLJ596, the Karnataka High Court has held as under:

• “6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 18 of the CPC only”.

Conclusion

The legal position on Replication and rejoinder is summed up by RC Lahoti, J. in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under::

• “(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 righs 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.”