IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 835 of 2010(O)
1. LT.COLN. CHARLE JOHN PETERS,
... Petitioner
Vs
1. SERAPHINE PETERS,
... Respondent
2. DOROTHY PETERS, W/O. TOM D'CRUZ,
3. JESEENTA PETERS, W/O. ALLESH VARGHESE,
4. DEEPTHI PETERS,
5. MARY LOUIS, W/O. LATE CHRISTIPHER,
6. CHRISLYIN PETER (MINOR), S/O. LATE
7. CHRISTINA PETERS, AGED 11 YEARS,
8. JERALD PETERS,
For Petitioner :SRI.M.BALAGOVINDAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.835 of 2010
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Dated this the 23rd day of November, 2010.
JUDGMENT
Respondents filed a suit for partition. Petitioner/defendant No.1 resisted
the suit contending that respondents have no right to seek partition of the
property. Later, he filed additional written statement setting up a Will which if
accepted would disentitle respondents from claiming right over the property and
filed an application to receive the additional written statement. That application
was dismissed by the learned Additional Sub Judge-I, Thiruvananthapuram (in
O.S.No.542 of 2004) observing that if petitioner wanted to incorporate additional
facts he could have filed application for amendment of the written statement
under Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”).
Petitioner challenges Ext.P5, order dismissing the application to receive
additional written statement.
2. Except in answer to a counter claim or set off subsequent
pleadings under Order VIII Rule 9 of the Code can be filed only with the leave of
the court. In such subsequent pleadings, petitioner cannot set up a plea which is
inconsistent with the contention that is already taken in the original written
statement. In the original written statement there was no contention raised by
the petitioner that in view of the Will respondents have no right over the
OP(C) No.835/2010
2
property. If that be so the proper remedy of the petitioner was to seek
amendment of original written statement. In that view learned Sub Judge is
correct in passing Ext.P5, order.
3. Learned counsel requested that petitioner may be permitted to
seek amendment of the written statement. I make it clear that if petitioner is
otherwise entitled and circumstances warranted, it is open to the petitioner to file
such application as provided under law and any such application if filed shall be
dealt with by the learned Sub Judge as per law.
Petition is dismissed with the above observation.
THOMAS P.JOSEPH,
Judge.
cks