A.N. Venugopala Gowda, J.

1. Petitioner has instituted a suit for partition and separate possession on 20.04.2002 against the Respondents. 1st Defendant having died, his legal representatives have been brought on record. The legal representatives of 1st Defendant have filed written statement on 17.10.2008, resting their case on a Will, said to have been executed-by the mother of the Petitioner in favour of the deceased 1st Defendant. The Petitioner filed I.A. No. 7 on 21.04.2009 under Section 151, Code of Civil Procedure, seeking leave of the Court to file replication to the written statement filed by the legal representatives of deceased 1st Defendant. The legal representatives of the 1st Defendant filed objections to I.A No. 7 on 30.05.2009. The Petitioner filed a memo on 06.02.2010 to treat I.A. No. 7 as one having been filed under Order VIII, Rule 9, Code of Civil Procedure The trial Court, upon consideration, did not find merit in I.A. No. 7 and hence the same was rejected. Aggrieved, the Plaintiff has filed this writ petition.

2. Sri H.S. Vivekananda, learned Counsel appearing for the Petitioner, firstly contended that, the trial Court has misread and misdirected itself with regard to the scope of Rule 9 under Order VIII of Code of Civil Procedure Secondly, the decision in the case of Amalgamated Bean Coffee Trading Co. Ltd. v. Zarir Minoo Bharucha and Anr., ILR 2005 Kar 2089, was not correctly analysed. Thirdly, replication can be filed to the written statement for not only denying the pleading in the written statement but also for clarifying the facts and by holding otherwise, the trial Court has committed irrationality and illegality.

3. Sri J. Kanikaraj, learned Counsel appearing for the Respondent No. 1 on the other hand contended that, Order VIII, Rule 9 does not complete a reply to the written statement of the Defendant from the Plaintiff. He contends that, by obtaining leave of the Court, a written statement or an additional written statement can be filed by the Plaintiff, if there is by way of defence to the suit, a set-off or counter-claim and not otherwise. He contends that, in the defence filed to the instant suit, there is neither a set-off nor any counterclaim and hence the prayer in I.A. No. 7 being misconceived was rightly rejected by the trial Court.

4. In the written statement filed by the legal representatives of the 1st Defendant, it was contended that, the mother of the Plaintiff has executed a Will in respect of item No. 1 of the suit schedule 'A' property in favour of Defendant No. 1. In the replication sought to be filed along with I.A. No. 7, the Plaintiff has attempted to deny the Will. The trial Court has considered the decision reported at ILR 2005 Kar 2089 (supra) and has held that, when once the Defendant has filed the written statement, there is no provision under law to file a replication to the written statement and the said decision has no application.

5. In the case reported at ILR 2005 Kar 2089, Petitioner had filed the suit against the Respondents for the relief of specific performance to execute and register a sale deed and to deliver possession of the suit schedule property. The Defendants filed separate written statements. The Plaintiff sought leave of the trial Court to file a rejoinder by filing an application under Order VIII, Rule 9 read with Section 151 of Code of Civil Procedure The trial Court on consideration of the materials on record opined that, leave to file replication cannot be granted. Said order was questioned in this Court. It was held that, the Code of Civil Procedure for from pinning down the Plaintiff to the plaint and Defendant to the written statement does contemplate further pleading. It was held that, it is permissible to the Plaintiff to file a replication to add to his pleas already made in the plaint, subject to the condition that leave is granted by the Court and the same is meant for denying or clarifying the facts stated in the written statement. Direc