New claims and inconsistent pleas cannot be raised through subsequent pleadings under Order 8 Rule 9 of the CPC; such claims should be raised through amendment under Order 6 Rule 17 of the CPC.

( 1 ) THE short point that arises for consideration in the crp is whether the defendants can raise a new plea or a new claim by way of an additional written statement under order 8, Rule 9 of the CPC.

( 2 ) THE plaintiffs have filed a suit for partition and for separate possession of their l/4th share in the suit schedule property. The defendants have filed a written statement contesting the said claim. In the written statement they have taken up a contention firstly, that the sale in favour of the plaintiffs by the first defendant is not valid and legal and it does not bind the other defendants. Secondly, they contend it a pre-emptive right to purchase that l/4th share from the first defendant and when the plaintiffs have purchased the l/4th share in contravention of the pre-emption right, no title passes to them. Thirdly, they have contended the sale transaction in favour of the plaintiffs is collusive and a sham transaction and title does not pass. On these pleadings, the trial court has framed issues. It is thereafter the present application i. a. No. 5 is filed purporting to be under order 8, Rule 9 of the CPC for permission to file an additional written statement. In the additional written statement the plea they want to raise is that the plaintiffs are benamidars of their husbands and therefore the sale deed under which plaintiffs claim title do not confer title and in the absence of husbands being made parties the suit is not maintainable. The said application was opposed by the plaintiffs. On consideration of the rival contentions, the trial court has rejected the said application. It is against the said order the present revision is filed.

( 3 ) LEARNED counsel for the petitioners submits that in law, plea, which is inconsistent with the original stand, could be raised by way of additional written statement. Further, she contends the plea now sought to be raised by way of additional written statement, namely the nature of transaction is already pleaded in the original plaint. Therefore, it cannot be said that it is a new plea and therefore she contends the impugned order cannot be sustained and therefore it is liable to be set aside.

( 4 ) SRI g. Balakrishna shastry, learned counsel for the respondents submits though under order 8, Rule 9 the court is empowered to grant permission to file an additional written statement by way of subsequent pleadings, if such subsequent pleadings contain a new claim which is not already pleaded earlier, then the same cannot be allowed. In that regard he points out order 6, Rule 7 of the CPC categorically states that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. Therefore, he contends if the defendants want to raise a new claim by way of additional statement, the same is clearly barred under order 6, Rule 7 of the CPC. Therefore, the order passed by the court below is perfectly legal and does not call for interference.

( 5 ) SMT. Shantha joshi, learned counsel for the petitioners relies on a judgment of the Supreme Court in the case of Smt. Arundhati mishra v Sri ram charitra pandey, and contends that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. In the aforesaid judgment the Supreme Court was considering the scope of an application under order 6, Rule 17 and not under order 8, Rule 9 of the CPC. Therefore, the said judgment has no application to the facts of the case. On the contrary, it supports the contention of the learned counsel for the respondents that inconsistent pleas or alternative pleas should be raised by way of amendment of written statement and not by way of additional statement. The learned counsel for the petitioners also relies on the case of s. Sridevi v s. Vijay and another, where it has been held that "there is am