- (1.) HEARD learned counsel for the petitioners and perused the orders impugned.
(2.) THE order dated 10.04.2012, impugnedin SBCWP No.5741/2012, was passed by the court below while deciding application seeking permission to file rejoinder to the written statement. In the Writ Petition No.5748/2012, by the impugned order dated 10.04.2012, while deciding application for permission to file rejoinder, to the reply filed by defendants to Temporary Injunction Application, the learned court below observed that order dated 10.04.2012 passed in the main suit will be applicable. Both these petitions involve a short, common controversy; hence, both these are being decided by this common order, at admission stage itself. Learned counsel for the petitioners submitted that in their written statement, the defendants No.7 and 8 stated some new facts and grounds based on such new facts and therefore, the petitioners filed application under Order 8 rule 9 CPC, praying thereby to file rejoinder, so as to rebut new facts and grounds pleaded by the defendants No.7 and 8. However, learned court below wrongly dismissed their application. It would be pertinent to refer to the observation made by the learned court below in its order dated 10.04.2012 while deciding the application of petitioners in the main suit: " 0 Proposed Facts " $ .......................... and set off or counter claim subsequent pleading to w.s. court ' permission $ ' ) + subsequent pleading to w.s. Statement 0 $ ' proposed facts $ : " 0 ) 0 $ and " ' " ) . 10.4.12 " 6 A/D " ) ' . 7/5/12 " Thus, it is clear from the above order that the learned court below rejected application of the petitioners for the reason that no new proposed subsequent pleadings have been filed by the petitioner-plaintiffs with their applications for permission to file subsequent pleadings, so as to enable the court to consider the prayer of permission to file such rejoinder.
(3.) IN the interest of justice, it would be appropriate to allow an opportunity to the petitioners to submit their proposed subsequent pleadings and the learned court below will consider the same and pass a fresh order in accordance with settled principles of law that plaintiff can not be allowed to introduce new pleas by way of filing rejoinder so as to alter the basis of his plaint. In the rejoinder, the plaintiff can be permitted to explain the additional facts, which have been incorporated in the written statement. The plaintiff can not be allowed to come forward with an entirely new case in his rejoinder. The plaintiff can not be permitted to raise inconsistent pleas so as to alter his original cause of action. Therefore, the impugned order dated 10.04.2012 passed by the learned court below in CO No.19/11- Heli & another v. Nemi Chand & others as well as order dated 10.04.2012 passed in Temporary Injunction application are set aside. The petitioners are directed to file proposed subsequent pleadings within a period of two weeks from today and upon filing of such proposed subsequent pleadings by the petitioners, the learned court below shall consider them afresh and pass appropriate orders as per settled principles of law. Both these petitions accordingly stand disposed of in limine. The Stay Petitions filed therewith also stand disposed of. ;