Additional Pleadings Raised In Rejoinder Cannot Form Part Of Plaint And No Evidence Can Be Adduced Based On It: Kerala High Court

The Kerala High Court recently held that additional pleadings raised in a rejoinder cannot form part of the plaint. Under the Code of Civil Procedure,1908 a party can incorporate additional pleadings to the plaint only by way of an amendment under Order VI Rule 17, the Court noted in this regard.

A single bench of Justice Mary Joseph observed that:

“...it is clear that a party seeking to obtain a relief by filing a plaint is not entitled to seek for consideration of the pleadings raised by him at a later point of time in the form of a rejoinder, as part of the plaint. The Code does not provide for such a recourse. It is clear from Order VI and VII referred to supra that a party seeking for a relief in a suit must incorporate all relevant and material pleadings in the plaint. If due to oversight, a party fails to incorporate any relevant or material pleadings in the plaint, he can have it incorporated by filing an application under Order VI Rule 17”

The Court went on to observe that such application for amendment must be filed before the trail commences and if it is filed afterwards, the applicant must convince the court that the pleadings sought to be incorporated came to the notice of the applicant only at a later stage, despite exercising due diligence.

“A party is not entitled to seek the court which is seizin of his suit to read the pleadings in the rejoinder alongwith those in the plaint. A party may bring additional pleadings into the plaint only through the process of amendment as envisaged under Order VI Rule 17 and by no other means. Only when the pleadings are specifically incorporated into the plaint, the party is entitled to adduce evidence on its basis. In the absence of any evidence adduced without a plea being raised in the plaint originally or additionally by way of amendment, that will be devoid of basis and irrelevant” the Court said.

The Court was considering a challenge to the dismissal of a suit for partition filed by the mother of the deceased. The suit was dismissed on the ground that the deceased had executed a Will in favour of his wife and hence the property was not partible.

It was the case of the Plaintiff that the deceased died intestate and that the Plaintiff being his mother was entitled to 1/4th share in his property under Hindu Mitakshara Law. The Plaintiff contended that the Will was executed when the testator was young and healthy, which creates suspicion. It was also contended that the property being passed onto only to his wife, without leaving anything being left behind for his mother or two daughters also creates suspicion on the genuineness of the Will, but these aspects were not examined by the trial court.

The Plaintiff argued that the Will was forged by the wife of the deceased after obtaining his signatures on blank papers. It was the case of the Plaintiff that in the issues framed by the trial court, the contention challenging the genuineness of the Will was not included.

However, the Court observed that the pleadings pointing to the Will being a fraudulent document was only raised in the rejoinder and not in the plaint as required under Rule 4 of Order VII of the CPC.

“A look at the plaint reveals that pleadings on any of the vitiating elements as contemplated under Rule 4 of Order VI (fraud in the case on hand) was taken in the plaint. True that a pleading in that regard was found incorporated in the rejoinder, but it cannot be taken as forming part of the plaint. Therefore this is a case wherein a pleading that the Will is a forged document is not raised in the plaint. That being so, the argument advanced by the learned counsel that an issue was not raised specifically on the genuineness of the Will is totally devoid of merits and is discarded. For want of a specific pleading in the plaint and specific denial of that in the written statement filed by the defendant, there is absolutely no scope for the trial court to raise it as an issue,” the Court observed. 

In the case at hand the Court refused to interfere with the order of the trial court that the property was not partible, as it was of the view that the execution of the Will had been established successfully.

Case Title: P Nanikutty V. K U Kalpakadevi

Citation: 2023 LiveLaw (Ker) 243

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