Shashi Kant Gupta - (1.) THIS revision is directed against the order dated 30.10.2007, passed by IIIrd Additional District Judge, Kanpur Nagar in S.C.C. Suit No. 43 of 2006, whereby the court below has rejected the application paper No, 19Ga filed by the revisionist-defendant for returning the replication to the plaintiff-respondent.
(2.) THE S.C.C. Suit No. 43 of 2006 was filed inter alia for arrears of rent and ejectment and the written statement was filed by the revisionist, whereafter the replication was filed by the respondent-plaintiff. THE defendant-revisionist filed an application for returning the replication to the plaintiff. THE said application has been dismissed. Hence, the present revision. Learned counsel for the revisionist has submitted that as per Order VIII, Rule 9 of C.P.C. no pleadings 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 and upon such terms as the Court thinks fit. It was further submitted that in the present case no such leave was granted by the court below as such the Court has erred in rejecting the application of the revisionist for returning the replication to the plaintiff-respondent. On the other hand learned counsel for the respondent-plaintiff has submitted that the revisionist himself admitted that he (revisionist) raised various facts and question of law in his written statement which necessitated the filing of the replication by the plaintiff. It was further submitted that no new facts have ever been raised and replication was filed after taking due permission from the court below and has not set up any new plea inconsistent with pleading in the plaint. It was submitted that the affidavit in support of the objection filed by the revisionist before the court below, clinches the issue, wherein it has been stated as follows : "that the learned court has directed the plaintiff to file an application", thus, the application was filed which was necessary and it is wrong to allege that it was uncalled for or unnecessary."
(3.) ON the other hand learned counsel for the respondent-plaintiff has submitted that the replication was filed with the leave of the Court as such it is maintainable. Heard the learned counsel for the parties and perused the record and considered the facts and circumstances of the case.;