TATIA, J. - (1.) HEARD learned counsel for the parties. Perused the impugned order dated 15. 09. 2000 passed by the Civil Judge (Jr. Div.) Merta by which the application u/o. 8 R. 9 CPC of the plaintiff-petitioner was dismissed, which was filed in Civil Misc. Case No. 120/2001.
(2.) THE plaintiff submitted that in reply to the injunction application some new facts have come on record in the reply of the non-petitioner-defendants. THErefore, the plaintiff wants to explain the facts. I perused the facts mentioned in the application and perused the impugned order. THE trial Court rejected the application u/o. 8 R. 9 CPC only on the ground that plaintiff wants to file a rejoinder, which is different from the plaint allegations (bereft of the facts of the suit ). It appears that the learned trial Court failed to appreciate the effect of the provisions of O. 8 R. 9 CPC. O. 8 R. 9 CPC give ample power to the Courts to permit additional pleadings to the parties. When some new facts come in the reply to the application or the allegation of the plaint then it is always better to get the explanation over the new facts from other party so that the Court may come to a correct decision. THE trial Court though mentioned that plaintiff wants to file the rejoinder away from the suit but has not considered on what facts the new facts sought to be pleaded in the rejoinder are inconsistent or contrary to the pleadings of the plaintiff and whether they are facts in reply to the reply of the defendant or not. I considered the fleets of the case. The plaintiff filed the suit for injunction for the land, upon which the defendant submitted that plaintiff is in possession of the property more than the property given in the Patta. In fact, the plaintiff has encroached upon the more land, Upon this reply the plaintiff wants to file the rejoinder explaining the circumstances in which the land is in possession of the plaintiff. This fact cannot be said to be irrelevant fact or "not a fact in reply to the mentioned in the reply of the defendant". Therefore, this is a clear case of illegal exercise of jurisdiction or rather it is is failure of exercise of jurisdiction by the trial Court resulted into rejection of the application u/o. 8 R. 9 CPC. Learned counsel for the non-petitioner relied upon the judgment of this Court delivered in Mahaveer Dass vs. Ganeshmal Jeevraj (1 ). The facts of the above case shows that the trial Court dismissed the application u/o. 8 R. 9 CPC filed by the plaintiff and it was observed that such pleas should be allowed to be taken in the pleadings and they should be decided in a suit and not through an application filed for grant of temporary injunction. Therefore, it is clear that in the case of the above facts it was found that the facts which the plaintiff wanted to plead should have been incorporated in the plaint and it should have been gone through in the suit. On this count the application was rejected. Whereas scope of O. 8 R. 9 CPC is very well settled and grant of permission of the written statement is permissible u/o. 8 R. 9 CPC. Therefore, the judgment cited by the learned counsel for the non-petitioner has no application to the facts of the present case. However, it is made clear that this is a revision petition challenging the order of refusal on taking on record the rejoinder only. Therefore, the trial Court after taking on record the rejoinder, will consider the allegations, counter allegations and reply to the counter allegations in accordance with law without influenced by by anything observed by this Court. Hence, the revision petition is allowed. The impugned order dated 15. 09. 2001 is set aside. The petitioner-plaintiff, if has not filed the rejoinder before the trial Court, should file the same on the next date necessarily, which shall be taken on record by the trial Court. No order as to the costs. . ;