• Civil suit for easementary right

Hi sir,I have filed a declaratory suit for easementary right.The defendants have dismantled/blocked my path to house as well as fields. I was able to prove all three points i.e Prima facie, balance of convenience and irrepairable loss in my favour.ultimately Court gave me interim relief by restoring the dismantled passage by filling dugged earth till the disposal of the suit. Now my advocate plans to file replication and also taken date for the same. But erroneously or I dont how the court have framed the issues on the basis of previous pleadings and order to file plaintiff to file evidence on our responsibility. But we want to file replication which unfolds many lies of the defendant which they filed in their written statement. Our replication is must have to be filed. Can the court consider our replication though court move ahead at the stage of plaintiff evidence.If opposite party object the replication and court deny for the same then what is the option before me. Pl guide.
Asked 6 months ago in Civil Law from Udhampur, Jammu and Kashmir
1) since issues have already been framed court may not permit you to file replication 

2) if date has been taken for filing replication court would permit you to file your replication on next date 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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Wait for court to pass order on your application for filing replication 

If court rejects your application go in appeal 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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Hi, Once the written statement filed by the defendant there is no need for filling a reply to the Written Statement.

2. You can lead your evidence by way of  Examination-in-Chief of your affidavit evidence and  you have to deny the allegations made  in the written statement and it is enough.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
O.VIII, R. 9???Replication,
Replication is a supplement of plaint???New plea cannot be raised in replication. Replication is a supplement of plaint and is also supposed to clarify such ambiguities which are left in the plaint or are pointed out by the defendant in his written statement and that altogether new case cannot be allowed to be presented in a replication as there will be no opportunity for the defendant to controvert such a new case set up in the replication.?­[Replication].
More clear definitions is give below:
Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed . (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of 'confession and avoidance.' (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave. (7) A mere denial of defendant's case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings. (10) A plea which is foundation of plaintiff's case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication. 
T Kalaiselvan
Advocate, Vellore
13931 Answers
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Then what is the option for filing replication

This question is also answered in the previous answer itself.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Unless replication is filed the issues cannot be framed. Move the HC to assail the order of the trial court by which it has refused to grant you opportunity to file replication and also to restrain the court below from proceeding with evidence. 
Ashish Davessar
Advocate, Jaipur
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445 Consultations
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1) You have good case on merits 

2) You have to during trial establish that there is no alternate access to your land 

3) Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours
Ajay Sethi
Advocate, Mumbai
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1214 Consultations
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1. If you wanted to file replication then you should have assailed the order of the trial judge in the HC. Wants remain fanciful wishes unless you channelise your efforts towards fulfilling those. Once the issues have been framed by the trial judge he cannot recall that order.

2. Your prospects can be told only after the pleadings are perused threadbare. We cannot show arrows in darkness.
Ashish Davessar
Advocate, Jaipur
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445 Consultations
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Replication is a pleading by plaintiff in answer to defendant's plea.
A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed.
Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of 'confession and avoidance.'

In your case since the court has already passed an order to to restore the dismantled passage, your claim has almost been proved, hence you may proceed in the same direction
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Th formal defendant shall remain a defendant itself, whether or not he is entitled to relief hence do not strain to bring him back to plaintiff once the case is already disposed.
In appeal the other person may or may not implead him as a party to the appeal. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1)  proforma defendant should make an application for setting aside order of exparte before the trial court 

2) explain reasons for delay in filing application 

3) court would on imposition of nominal costs and in interests of justice set aside order of exparte 
Ajay Sethi
Advocate, Mumbai
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If the proforma defendant has been proceeded against ex parte then the remedy is for him to adopt which is to file an application for setting aside of the ex parte decree passed against him. You cannot implead him as a plaintiff. He is the one who has to file the appropriate application. 
Ashish Davessar
Advocate, Jaipur
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445 Consultations
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