Drafting of Replication / Rejoinder →

Few subsequent pleadings are as misunderstood — or as casually filed — as the replication and the rejoinder. Trained as a reflex, the modern litigant files a replication to almost every written statement, usually as a paragraph-by-paragraph denial that adds nothing the law does not already presume. The Code of Civil Procedure, 1908, takes a far stricter view: under Order 6 Rule 1, a “pleading” means only a plaint or a written statement, and under Order 8 Rule 9, no pleading subsequent to the written statement — except a defence to a set-off or counter-claim — may be presented except by leave of the Court. A replication is therefore a creature of judicial permission, not of right; a rejoinder even more so. For the judiciary and CLAT-PG aspirant, the examinable craft lies in knowing precisely when these pleadings are competent, what they may and may not say, and how to draft one that survives the leave stage. This note builds that skill on verified authority — above all Anant Construction (P) Ltd. v. Ram Niwas and the Supreme Court's 2024 ruling in Sheikh Noorul Hassan v. Nahakpam Indrajit Singh.

Replication and rejoinder: meaning and the difference

The two words are constantly used loosely, but they are not synonyms. In Anant Construction (P) Ltd. v. Ram Niwas, 1994 SCC OnLine Del 615 (also reported 1994 (31) DRJ 205), R.C. Lahoti, J. (later Chief Justice of India) settled the terminology that examiners still expect you to reproduce: “Replication is a pleading by the plaintiff in answer to the defendant's plea. Rejoinder is a second pleading by the defendant in answer to the plaintiff's reply.” In short, a replication moves from plaintiff to defendant's case; a rejoinder is the defendant's responsive pleading to that replication. In ordinary suits the replication is the more common animal because the defendant's written statement is the pleading that may raise fresh matter calling for an answer; a rejoinder arises only where the replication itself introduces something the defendant is entitled to meet.

Neither term appears in the body of the CPC. The Code speaks of “subsequent pleadings” in Order 8 Rule 9, and the bench-and-bar vocabulary of “replication” and “rejoinder” is borrowed from the older common-law system of pleadings (declaration, plea, replication, rejoinder, surrejoinder, rebutter, surrebutter). Because the labels are conventional rather than statutory, drafting discipline matters even more: a document titled “Replication” is judged by what it actually does, not by its heading. If you would like to anchor this in first principles, read it alongside the introduction to pleading and drafting and the fundamental rules of pleading.

The statutory basis: Order 6 Rule 1 and Order 8 Rule 9 CPC

Two provisions govern the field. First, Order 6 Rule 1 defines a “pleading” to mean a plaint or written statement — and nothing else. A replication and a rejoinder are therefore not “pleadings” in their own right until the Court permits them and they merge into the record. Second, Order 8 Rule 9 is the gatekeeper. After the 1999 amendment briefly omitted it, the provision was restored by the CPC (Amendment) Act, 2002 in this form: “No pleading subsequent to the written statement of a defendant other than by way of defence to a 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.”

Three things follow directly from the text. One, a defence to a set-off or counter-claim is the only subsequent pleading filed as of right — because a counter-claim is treated as a cross-suit and the plaintiff must be allowed to defend it. Two, every other subsequent pleading, including the ordinary replication, needs the Court's leave, and the Court may impose terms (commonly costs and a time-cap). Three, the Court has an independent power to call for an additional written statement and fix a period of not more than thirty days. The drafting consequence is that you almost always file a replication with, or preceded by, an application for leave under Order 8 Rule 9 — you do not simply lodge it at the counter and assume it is on record.

When a replication is competent: the Anant Construction triad

Anant Construction (P) Ltd. v. Ram Niwas is the spine of this topic. The suit had been pending since 1982 and had not reached trial in twelve years, largely because of an endless exchange of replications and rejoinders. The Delhi High Court used the occasion to lay down a structured set of propositions. On competence, the Court held that a replication may be filed only in three situations: (i) where it is required by law; (ii) where a counter-claim or set-off has been raised by the defendant; and (iii) where the Court directs or permits a replication after scrutinising the plaint and the written statement. The third category is discretionary and is exercised only when the Court sees a genuine need for the plaintiff to join a specific pleading to a case specifically and newly raised in the written statement.

The negative side of the proposition is just as examinable. A mere denial of the defendant's case needs no replication: the plaintiff is protected by the rule of implied or assumed traverse and joinder of issue, so every material averment in the written statement is presumed to be denied without a word being filed. It follows that a replication which only traverses the written statement paragraph-by-paragraph is not just unnecessary — it is liable to be refused leave as an abuse that delays trial. The leave enquiry, in practice, is whether the written statement has raised new facts (a plea of limitation, a fresh contract, a release, an estoppel, fraud, want of notice) that genuinely call for the plaintiff's specific answer.

Why silence is safe: presumed denial and the no-admission rule

The single most reassuring rule for a plaintiff who chooses not to file a replication is that non-filing is not an admission. The Supreme Court put this beyond doubt in K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354: pleadings under Order 6 Rule 1 consist only of the plaint and the written statement; a plaintiff could file a replication to a plea in the written statement, which, if allowed, would become part of the pleadings, “but mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.” The same logic appears in Anant Construction: failure to file a replication cannot be treated as an admission of the plea in the written statement, and every material averment is presumed denied.

This sits on a deeper foundation traceable to M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, where the principle that a mere denial of the defendant's case needs no replication — the plaintiff relying on the rule of implied or assumed traverse and joinder of issue — was applied. The drafting takeaway is liberating: do not file a defensive replication out of nervousness. The presumption of denial already covers you. You draft a replication only when you must positively plead something the plaint does not yet contain but the plaintiff is entitled to say in answer to a new plea — and even then, within strict limits discussed below. Contrast this with the defendant's position, where silence is dangerous; an evasive or non-specific denial in the written statement can amount to admission under Order 8 Rules 3 and 5.

The cardinal limit: a replication cannot make a new case

The most heavily tested proposition in this topic is the prohibition on using a replication to expand or shift the plaintiff's case. Anant Construction states it in several overlapping formulations that are worth memorising. A replication is always a defensive pleading in nature. A plea inconsistent with the case set out by the plaintiff in the plaint can never be permitted to be raised in a replication. And a plea which essentially constitutes the foundation of the plaintiff's claim cannot be introduced through a replication — that belongs in the plaint, and if it is missing, the remedy is amendment under Order 6 Rule 17, not a replication. By symmetry, the Court added that a plea in rejoinder cannot be inconsistent with the case set out by the defendant in the written statement.

The Supreme Court reaffirmed and refined these limits in Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 INSC 391 (decided 8 May 2024). A replication, the Court held, may explain and answer the assertions in the written statement, but it cannot merely traverse those facts, cannot be used as a substitute for a formal amendment, and cannot introduce a new cause of action or a plea inconsistent with the original petition or plaint. Read those three negatives as a checklist whenever you draft: if your replication is doing any of them, it will either be refused leave or, if filed, ignored at trial as a pleading the law does not recognise. The line is between explaining a new plea (permitted) and founding a new claim (forbidden).

Leave is not granted mechanically: Sheikh Noorul Hassan (2024)

Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 INSC 391, decided by a Bench of Chandrachud, C.J., and Pardiwala and Manoj Misra, JJ., is the most current and authoritative statement on subsequent pleadings, and it deserves close study. The case arose from an election petition under the Representation of the People Act, 1951. By virtue of Section 87(1) of that Act, a High Court trying an election petition has all the powers of a civil court under the CPC, including Order 8 Rule 9. The returned candidate (the appellant before the Supreme Court) had filed a written statement asserting new facts; the High Court of Manipur granted the election petitioner leave to file a replication; and that grant was upheld.

The Court's holding is doctrinally important on two fronts. First, on jurisdiction: yes, a subsequent pleading under Order 8 Rule 9 is permissible in an election petition, and the tribunal may grant leave to file it. Second, on discipline: “such leave is not to be granted mechanically.” Before allowing a replication the Court must examine the petition (or plaint), the written statement, and the proposed replication, and satisfy itself that the replication genuinely seeks to explain the averments made in the written statement rather than to traverse them, amend by stealth, or set up a new case. On the facts, leave was justified because the replication sought to explain the new facts in the written statement. For an aspirant, Sheikh Noorul Hassan is the modern peg that ties the old Anant Construction propositions to a Supreme Court ratio.

Replication versus amendment under Order 6 Rule 17

A recurring trap — in practice and in examinations — is treating a replication as a cheap substitute for amendment. They are different instruments serving different purposes. A replication answers a new plea raised by the opponent; an amendment under Order 6 Rule 17 alters the party's own pleading to add or correct material facts. As Anant Construction and Sheikh Noorul Hassan both stress, if the plaintiff needs to introduce a fact that forms the foundation of the claim or to plead a new cause of action, the only legitimate route is amendment, not replication.

The amendment route, however, is itself fenced in. The proviso to Order 6 Rule 17, restored by the CPC (Amendment) Act, 2002, bars amendment after the commencement of trial unless the Court concludes that, in spite of due diligence, the party could not have raised the matter before trial began. The object, explained in the post-amendment jurisprudence, is to stop frivolous, delay-inducing applications. The practical lesson for drafting: identify at the leave stage whether you are answering the defendant (replication) or changing your own case (amendment). Mislabelling the second as the first is precisely what courts catch and refuse. Treat this section as a companion to your study of drafting the plaint, where the foundational averments belong.

How courts read a replication: substance over form

Once leave is granted and a replication is on record, it is construed by the same canons as any other pleading. In Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College, (1987) 2 SCC 555, the Supreme Court laid down that pleadings must receive a liberal construction and that “no pedantic approach should be adopted to defeat justice on hair-splitting technicalities”; what matters is the substance of the pleading, not its precise form. The Court also reiterated the cardinal object of pleadings — to enable the adversary to know the case it has to meet so that no party is taken by surprise.

For the draftsman this cuts both ways. A replication that is sloppily worded will still be read for its substance, so a minor infelicity is not fatal. But the converse is the danger: because courts look at substance, a replication that in substance sets up a new case or contradicts the plaint will be condemned no matter how it is labelled. The discipline, therefore, is to draft a replication that is, in substance as well as in form, a focused answer to identified new pleas in the written statement — nothing more. This is the same substance-over-form ethic that runs through the fundamental rules of pleading: plead material facts, not evidence or law, and plead them with precision.

Drafting structure: how a replication is laid out

A competent replication follows the architecture of any pleading. The heading reproduces the cause-title (court, suit number, parties) exactly as in the plaint. The body opens with a short preamble: that the replication is filed pursuant to the leave granted by the Court (cite the order date and the application) and is confined to answering the new pleas raised in the written statement. The substantive paragraphs then take up, plea by plea, only those averments in the written statement that genuinely require a specific answer — limitation, a fresh agreement, payment, release, estoppel, want of jurisdiction, and the like — and meet each with the plaintiff's positive case in reply.

Three drafting rules keep a replication on the right side of Order 8 Rule 9. First, do not reproduce or repeat the plaint; the plaint already stands, and the presumption of denial already covers the rest. Second, do not add a paragraph that, if isolated, would read like a fresh cause of action — that is the foundation-of-claim prohibition from Anant Construction. Third, plead material facts, not evidence, and verify the replication exactly as a plaint is verified under Order 6 Rule 15 — distinguishing averments made on personal knowledge from those on information and belief. Close with a prayer that the suit be decreed as prayed and that the new pleas in the written statement be rejected. The same verification and annexure discipline you apply to the plaint applies here.

Drafting the application for leave under Order 8 Rule 9

Because the replication is not on record until leave is granted, the practical first document is the application for leave. It is a short interlocutory application — governed by the same craft as any interlocutory application — supported by an affidavit. The application must do exactly what Sheikh Noorul Hassan says the Court will scrutinise: it must identify the specific new facts raised in the written statement (by paragraph), show that the proposed replication only explains or answers them, and assert that it does not traverse, does not substitute for an amendment, and introduces no new cause of action or inconsistent plea. Annex the draft replication so the Court can scrutinise it, as the Supreme Court directs.

Frame the grounds tightly. State that, but for the replication, the plaintiff's specific answer to the new pleas would not appear on the record in a manner that frames the issues; that the replication is necessary in the interest of a fair trial so that the defendant knows the case it has to meet (the Ram Sarup Gupta object); and that no prejudice or delay results because the document is confined and the plaintiff is willing to accept terms as to costs and time. Do not overclaim: an application that betrays an intention to enlarge the plaint invites refusal, because the very vice Anant Construction condemned was the routine, denial-only replication that stalls trial.

Drafting the rejoinder: the defendant's responsive pleading

A rejoinder is the defendant's pleading in answer to the plaintiff's replication, and it is even more tightly confined than the replication. It too requires leave under Order 8 Rule 9 (it is a pleading subsequent to the written statement and is not a defence to set-off or counter-claim). It is competent only where the replication has, with leave, introduced matter the defendant is genuinely entitled to answer. The governing limit from Anant Construction is symmetrical to the rule for replications: a plea in rejoinder cannot be inconsistent with the case set out by the defendant in the written statement. A rejoinder, in other words, may explain or clarify the defendant's position in light of the replication, but it cannot resile from or contradict the written statement, and it cannot smuggle in a fresh defence.

Drafting a rejoinder, therefore, begins by reading the replication paragraph by paragraph and isolating only those averments that say something new (as opposed to merely restating the plaint). The rejoinder answers those, reaffirms the written statement, and stops. If the defendant actually needs to add a defence — a new plea of limitation, a fresh document, an alternative case — the correct instrument is an additional written statement (which the Court may itself require under Order 8 Rule 9, fixing not more than thirty days) or an amendment under Order 6 Rule 17, not a rejoinder dressed up to do that work. As with the replication, verify the rejoinder and confine it to material facts.

Common drafting errors and how courts penalise them

The errors that examiners and judges look for are predictable. The denial-only replication is the classic: a paragraph-by-paragraph denial of the written statement that adds nothing the presumption of denial does not already supply. Anant Construction describes these as “mere denials” that ought never to be filed, and leave for such a replication should be refused. The disguised amendment is the second: a replication that quietly adds a fact essential to the plaintiff's claim. It fails the foundation-of-claim test and, under Sheikh Noorul Hassan, the substitute-for-amendment prohibition. The inconsistent plea is the third: a replication contradicting the plaint, or a rejoinder contradicting the written statement — both barred outright.

The procedural penalties are real. A replication filed without leave is not a pleading at all and may be disregarded at trial; one filed with leave but exceeding its limits will, in substance, be ignored to the extent it sets up a new or inconsistent case. Costs may be imposed as a condition of leave, and — in the Commercial and Original-Side context — strict time-limits apply. Under the Delhi High Court (Original Side) Rules, 2018, for instance, a replication must be filed within thirty days of receipt of the written statement, extendable by at most a further fifteen days for exceptional and unavoidable reasons, and not taken on record unless costs are paid; beyond that, no replication is permitted. The discipline of subsequent pleadings is, in the end, the discipline of the whole craft of pleading — plead material facts, plead them once, and plead them in the right document. Return to the Pleading & Drafting hub to see how replication and rejoinder fit alongside the plaint, written statement, and interlocutory applications.