LODHA, J. - (1.) THIS writ is directed against order dated 13. 4. 2007 passed by the learned Rent Tribunal Udaipur in Original Application (Rent Control) No. 383/04, whereby an application preferred on behalf of the petitioner herein under Section 15 (4) read with Section 21 (1) (2) (3) of the Rajasthan Rent Control Act, 2001 (in short `the Act of 2001') seeking leave to file additional reply to the rejoinder filed on behalf of the respondent No. 1 herein has been rejected.
(2.) THE brief facts in nutshell relevant to the controversy involved in this writ petition are that respondent No. 1 filed an application under Section 9 (1) of the Act of 2001 before the Rent Tribunal, Udaipur for eviction of petitioner from the shop let out to him, inter alia on the ground of reasonable bonafide necessity. It is stated that son of the respondent No. 1 was earlier doing his business in a rented shop in the name and style of ``balaji Earth Movers", at Emarld Tower, Hathi Pole, Udaipur. It is averred in the application preferred before the Rent Tribunal that the landlord of the said shop, had bonafide necessity of the shop for her own use, therefore, the son of the respondent No. 1 had to shift his business at first floor of the suit premises. It is further stated that for carrying out the business of Earth Movers heavy machinery are installed and its operation at first floor is not convenient and the ground floor of the suit premises is only suitable place for running of the said business by son of the respondent No. 1. The petitioner resisted the application for eviction by way of reply to the application. The averments made in the application were empathically denied and it was stated that the respondent No. 1 is carrying on business of spare parts only, which can be conveniently carried out at the first floor of the shop in question. A rejoinder to the reply was filed on behalf of the respondent No. 1 before the Rent Tribunal. It is stated that in the rejoinder altogether new facts were pleaded, which were though in the knowledge of the respondent No. 1 were not set out in the original application. In this view of the matter, the petitioner objected the taking of the rejoinder on the record. Alternatively, it was prayed that if such rejoinder is allowed to be taken on record then the petitioner may be permitted to submit additional reply to the same. The application was opposed on behalf of the respondent No. 1. The learned Tribunal has rejected the application preferred by the petitioner vide order 13. 4. 07, holding that there is no provision under the Act of 2001, which permits filing of reply to the rejoinder. Regarding the new facts stated in the rejoinder, the learned Tribunal opined that the rejoinder filed is only an explanation to the reply filed, which is within the parameters of law. Accordingly, the objection raised by the petitioner against taking of rejoinder on record has been rejected and the alternative prayer made by him seeking leave to file additional written statement has also been disallowed. Hence, this petition. I have heard the learned counsels for the parties and perused the record. Learned counsels for the parties have reiterated the arguments raised by them before the learned Tribunal. It is to be noticed that Order 8 Rule 9 of C. P. C. provides for pleadings subsequent to the written statement of the defendant, which reads as under: " 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; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. " Thus, as per Order 8 Rule 9 C. P. C. , in ordinary course the pleading except in case of plea of set-off or counter-claim ends with the defendant filing the written statement. The plaintiff or defendant is not entitled to file any additional/supplemental written statement except with the leave of the Court. But at the same time, the plaintiff cannot be permitted to raise new pleas and facts in the garb of filing rejoinder so as to alter the basis of the case set out or come forward with altogether a new case to which the defendant has no opportunity to reply. However, it is settled law that where the defendant brings new facts in the written statement the plaintiff must be afforded an opportunity to controvert the allegations/averments incorporated in the written statement.
(3.) IN the matter of M/s. Ajanta Enterprises vs. Bimla Charan Chatterjee and Anr. (1987 (1) RLR 991) while examining the ambit and scope of provisions of Order 8 Rule 9, C. P. C. this Court held that "in the garb of submitting the 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. " Similarly in the matter of State of Rajasthan vs. Mohd. Iqbal (1998 DNJ (Raj.) 275 while considering the various judgments of different High Court including the judgment of this Court in M/s. Ajanta Enterprise (supra) this Court held that the plaintiff cannot be allowed to introduce new pleas under the garb of filing rejoinder, so as to alter the basis of his plaint. In rejoinder, plaintiff has a right to explain only the additional facts incorporated by the defendant in his written statement. In rejoinder, plaintiff cannot be permitted to come forward with an entirely new case or raise inconsistent pleas so as to alter his original cause of action. It is true that by virtue of provisions of sub-section (4) of Section 15 of the Act of 2001, the applicant in a rent application is entitled to file rejoinder, if any, to the reply filed on behalf of the non-applicant as a matter of right without seeking leave of the learned Tribunal, but the fact remains that the rejoinder by its very nature shall be confined to the new pleas or facts introduce by the non-applicant in his reply, therefore, the position of law as discussed above shall govern the filing of the rejoinder by the applicant even in the proceedings before the Rent Tribunal under the provisions of the Act of 2001. ;