Judgment :-

S.B. Sinha, J.

1.1. Leave granted.

.2. Distinction between Order VIII Rule 9 of the Code of Civil Procedure and Order VI

.Rule 17 thereof is the question involved in this appeal. It arises out of a judgment and order dated 4.9.2007 passed by a learned Single Judge of the High Court of Judicature at Madras in CRP (NDP) No.1643 of 2007.

.3. Before embarking on the said question, we may notice the admitted fact:

.Anantha Subramania Iyer had two brothers. They were members of a joint family. By reason of a deed of partition dated 23.8.1962, the said joint family properties were partitioned in terms whereof the properties involved in the present suit were allotted to Anantha Subramania Iyer. He had two sons and five daughters. Appellant is one of them. He allegedly executed a Will on or about 18.3.1993 in terms whereof he bequeathed the property in suit in favour of his wife. The said Will was said to have been attested by his sons. Anantha Sumramania passed away on 19.3.1993. Indisputably, his wife also passed away on 13.8.1993. P.A. Ganesan, one of the sons of Anantha Subramania Iyer passed away on 24.5.1998 leaving behind his wife and three daughters who are respondent Nos.1 to 4 herein. The said respondents filed a suit for partition in the year 2004. According to them, the suit property was a joint family property and both the brothers being coparceners had 1/3rd share therein. Apart therefrom, they claimed their share also in the property which P.A. Ganesan had inherited from his father, and, thus, the same came to 8/21 for each of the sons of Anantha Subramania Iyer and 1/21 share so far as his daughters including the appellant are concerned.

2.4. Appellant filed her written statement on 7.4.2006, inter alia, contending that after the death of Anantha Subramania Iyer, the properties in suit devolved upon each of his children equally as a result whereof she inherited 1/7th share therein. Allegedly, she discovered on or about 5.2.2007 that Anantha Subramania Iyer had executed a Will in favour of his wife. On or about 1.3.2007, she filed an application for leave to file additional written statement. By an order dated 27.3.2007, the learned Trial Judge dismissed the said application, opining :

"10. The petitioner/4th defendant has filed this petition after the start of the enquiry proceedings in this suit and after examination of the PW1 in full stating that one Anantha Subramania Iyer had executed a WILL on 18.3.93, that a copy of the same traced out only now and hence it is to be considered that mentioning of the same in the additional written statement itself would be a belated one and further failure to mention this in the written statement filed on 7.11.2006 and after the start of trial filing a petition seeking permission to file additional written statement with regard to a WILL which has not been mentioned in the written statement seems not acceptable and the petition is a belated one."

5. Aggrieved thereby and dissatisfied therewith, the appellant filed a Civil Revision Petition which by reason of the impugned judgment has been dismissed by the High Court, stating :

"On a careful consideration of the reasons stated by the learned senior counsel appearing for the Respondent, this Court is of the view that the introduction of the Will said to have been executed by Ananthasubramaniam dated 18.3.1993 could not be considered to receive the same. For the reasons that if the Will is received by the Court, then the rights of the parties will be completely changed. Under such circumstances the share claimed by the Plaintiff in the suit will also be changed. Under such circumstances, this Court is not inclined to interfere with the order passed by the learned Additional District and Sessions Judge, (Fast Track Court No.II), Coimbatore. This Court does not find any valid reasons, the revision is no merits and the same is dismissed. Consequently, concerned M.P. No.1 of 2007 is closed. No cost."

2.6. Mr. Vishwanathan, lea