Shiv Kumar Sharma, J.
1. Instant revision impugns, the order dated October 14, 1997, of the learned Additional Civil Judge (Senior Division)-cum-Additional Chief Judicial Magistrate No. 3, Udaipur, whereby the application under Order 8, Rule 9, CPC submitted by the plaintiff-petitioners (for short the plaintiffs) was allowed and rejoinder submitted by them was taken on record.
2. A brief 'resume' of the facts is that Akbar Ali instituted a suit for eviction against the defendant non-petitioners (for short the defendants) on November 23, 1982. Thereafter Akbar Ali sold the property. The applicants-purchaser moved application under Order 22, Rule 10 read with Order 1, Rule 10, CPC. It was allowed by the learned trial Court. Thereafter the plaint was amended adding ground of bona fide need. The suit of the plaintiffs was decreed by the learned trial Court on November 24, 1995. The defendants-State of Rajasthan and another filed appeal before the appellate Court. The defendants moved an application under Order 6, Rule 17, CPC for amending the written statement. The learned appellate Court on March 8, 1995 allowed the application permitting the defendants to amend their written statement. Cost of Rs. 500/- was imposed on the defendants and liberty was given to the plaintiffs to file rejoinder. The case was remanded back to the trial Court under Order 41, Rule 25, CPC for framing additional issue on question of Section 80, CPC. On September 4, 1997, written statement was amended and it was averred that the plaintiffs did not serve notice u/s 80, CPC. The plaintiffs moved application under Order 8, Rule 9, CPC on September 20, 1997. The defendants submitted reply to the application. The learned trial Court allowed the application and rejoinder was taken on record vide order dated October 14, 1997.
3. Mr. R.L. Jangid, learned counsel appearing for the defendants made scathing criticism of the impugned order. The contention of learned counsel is that application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different. According to Mr. Jangid new pleas cannot be allowed to be introduced so as to alter the basis of the plaint. In the rejoinder the plaintiff has simply to explain additional facts mentioned in the written statement and he cannot be allowed to come forward entirely with a new case in rejoinder. Pleas inconsistent with earlier pleadings cannot be introduced by way of rejoinder.
4. Reliance was placed on Ajanta Enterprises, Jaipur v. Simla Charan Chatterjee 1987 (1) RLR 991 and Gannon Dunkerley and Co. Ltd. Vs. Steel Authority of India Ltd., Rourkela,
5. On the other hand, Mr. N.P. Gupta, learned counsel appearing for the plaintiffs urged that the rejoinder was filed in pursuance of the directions issued by the appellate Court vide its order dated March 8, 1995. The impugned order expressly mentions that only those facts will be considered as are necessary for determination of the additional issue.
6. I have given my anxious consideration to the rival contentions and carefully perused the impugned order.
7. In Ajanta Enterprises Jaipur v. Bimla Charan Chatterjee (supra), this Court while examining the scope of Order 8 Rule 9 CPC indicated thus :
"A defendant can file a written statement as a matter of right and for doing so he does not have to obtain the permission of the Court. On the other hand, a rejoinder or a replica is not to be filed as a matter of right except in cases where the defendant has raised a plea of set-off or made a counter-claim but is to be filed only with the permission of the Court and this permission has to be granted after taking into consideration all the facts and circumstances of the case, specially the pleas which have been raised in the written statement. In the garb of submitting a rejoinder, a plaintiff cannot be allowed to introduce new pleas in his plaint so as to alter the basis of his plaint. In a rejoinder he has to simply explain if certain additional facts have been mentioned in the written-statement and the plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder. The position of the plaintiff, to make changes in his plaint, cannot be the same as changes which can be allowed to be made in the written statement, for the reason that a defendant may be allowed to make amendments, which may be different from his earlier pleas but the plaintiff cannot be allowed to alter his original cause of action on which he has come before the Court. On this process, it can be said that the plaintiff cannot by way of rejoinder introduce pleas which are not consistent with earlier pleadings."
8. Cannon Dunkerley & Co. Ltd. v. Steel Authority of India Ltd. (supra) was the case where the Orissa High Court observed that application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different. Inconsistent pleas which are at variance with plea originally taken in the suit cannot be permitted to be introduced.
9. The principles deducible from the above discussions may be summarised thus -
a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint.
b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.
c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.
d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.
e) Application under Order 8, Rule 9, CPC cannot be treated as one under Order 6, Rule 17, CPC as both are contextually different.
10. In the case on hand, the bare look at the pleas sought to be introduced by the plaintiffs should not be at variance with the pleas originally taken in the plaint. No doubt that the plaintiffs were permitted by the learned appellate Court to file rejoinder but by this permission, the scope of Order 8, Rule 9, CPC cannot be extended. The impugned order though expressly mentioned that only those facts will be considered as are necessary for determination of the additional issue but this is not sufficient. The learned Court below ought to have specifically considered whether the pleas sought to be introduced by way of rejoinder is not inconsistent and at variance with the pleas originally taken in the plaint and whether new pleas which could only be introduced by
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way of amendment were raised in the rejoinder. In not doing so, the learned Court below has committed jurisdictional error and if the order is allowed to stand, it would occasion failure of justice. 11. Resultantly, the revision succeeds and is hereby allowed. The impugned order is set aside and the case is remitted back for fresh decision to the learned trial Court to consider that whether the plea sought to be introduced by way of rejoinder is not inconsistent and at variance with the pleas originally taken in the plaint and whether new pleas which could only be introduced by way of amendment were raised in the rejoinder. The parties are directed to appear before the learned trial Court on March 26, 1998.