ORDER
1. Heard.
2. This revision by defendant 3 in O.S. No. 63 of 1995 is directed against the order dated 21st of July, 1998 made by the Trial Court on I.A. No. 4 filed under Order 6, Rule 17 of the CPC rejecting the same.
3. The said suit was filed by the respondent for declaration and possession of the suit property. The plaintiff’s suit was contested by the petitioner on the ground that the suit property was the joint family property. Indisputably, the parties are related to each other and they are the descendants of one late Mahadevappa. Plaintiffs contention in the plaint was that the suit property is his self-acquired property. Evidence of the parties has not yet commenced in the suit. The issues are stated to have been framed by the Trial Court. I.A. No. 4 was made by the petitioner praying for permission to carry out amendment in the written statement to the effect that he is entitled to a share in the suit property as co-owner thereof, the said property being the joint family property of the parties and, therefore, his claim to the decree for partition and separate allocation of half share by metes and bounds. That application of petitioner was rejected by the Trial Court on the ground that his claim sought to be introduced in the written statement by way of amendment is a counter-claim which is not permissible in law and that there was no cause of action for the same.
4. The respective case of the parties to the suit is misconceived by the Court-below. Having regard to the defence already taken by the petitioner in the written statement that the suit property is the joint family property of himself and plaintiff, it legally follows that he is entitled in law to put forth his claim to the decree in respect of his alleged share in the property and the Court-below is bound to entertain and try the same as a counter-suit subject to all just exceptions. The nature of amendment in the written statement that is sought to be made by petitioner-defendant is essentially based on the averments which are already made therein. Therefore, the order under revision of the Court-below is not sustainable in law.
5. For the reasons aforesaid, the revision is allowed. The impugned order is set aside. Petitioner’s I.A. No. 4 in O.S. No. 3250 of 1998 is allowed permitting him to carry out the amendment as prayed therein in the written-statement. The Trial Court shall proceed with trial of the
suit according to law after the amendment in written statement is effected by the petitioner.