Subsequent pleadings under Order VIII Rule 9 of the Code of Civil Procedure, 1908 cannot introduce a new case but can explain additional facts and put forth a positive case in reply to the defendant's case.

1. In view of notice for final disposal of the writ petition, the learned Counsel for the parties have been heard at length.

2. The petitioners who are the original defendant Nos.2 to 6 are aggrieved by the order passed by the trial Court below Exhibit-53 granting leave to the respondent No.1 – original plaintiff to file subsequent pleadings under provisions of Order VIII Rule 9 of the Code of Civil Procedure, 1908 (for short the Code.).

3. The facts found relevant for adjudicating the challenge are that the respondent No.1 filed suit for declaration that he had 1/3rd share in the amount of compensation determined and awarded in land acquisition proceedings. It is his case that he, the respondent No.2 and the predecessor of the petitioners were the real brothers and they along with their mother had 1/4th share each in the land which was acquired. According to the respondent No.1, the predecessor of the petitioners had illegally withdrawn the entire amount of compensation and hence the aforesaid suit was filed.

The petitioners filed their written statement on 31-1-2010 wherein a stand was taken that on 28-6-1997 a written memorandum of partition was executed by which the land which had been acquired fell to the share of the predecessor of the petitioners. It was pleaded that said document was handed over to the respondent No.2. The respondent No.2 also filed his written statement on 15-3-2010 and relied upon said document of partition dated 28-6-1997.

4. The issues were framed by the trial Court on 15-3-2010 and on 6-9-2010 the respondent No.1 filed his affidavit in lieu of evidence. During his cross examination by the petitioners, the respondent No.1 was confronted with the document dated 28-6-1997. The respondent No.1 found from the record that said document had been filed by the respondent No.2 on 16-2-2012. On 26-9-2013, the respondent No.1 filed an application below Exhibit53 seeking permission to file written statement under provisions of Order VIII Rule 9 of the Code. Said application was opposed by the petitioners on the ground that the respondent No.1 was having knowledge of the said document and there was delay in seeking leave to file written statement under aforesaid provisions.

By order dated 24-7-2015, the trial Court allowed aforesaid application by accepting the case of the respondent No.1 that though said document had been filed on record, a copy of said document was misplaced by the Counsel for the respondent No.1. It held that as said document had not been filed on record along with the pleadings, the respondent No.1 was not expected to respond to the same immediately. By imposing costs of Rs.1000/-, the application came to be allowed.

5. Ms. Kirti Satpute, learned Counsel for the petitioners submitted that the original plaintiff had no authority in law to seek permission to file written statement under provisions of Order VIII Rule 9 of the Code. According to her, the original plaintiff had prior knowledge of the document in question and, therefore, necessary pleadings could have been made in the plaint. For the purposes of covering lacuna in the plaint, the application in question had been filed. It was submitted that the plaintiff could have sought production of the document in question before leading evidence but the same was not done. It was submitted that the plaintiff was therefore, not diligent while moving the present application and on that count, the same could not have been allowed. In support of her submissions, the learned Counsel placed reliance upon the judgment of the learned Single Judge in Jayashree Subhash Kalbande and another vs. Bhaurao Nagorao Derkar and others 2014 (4) Mh.L.J. 168. It was, therefore, submitted that the impugned order was liable to be set aside.

6. Shri M. P. Khajanchi, learned Counsel for the respondent No.1 supported the impugned order. According to him though there was reference to the alleged document in the written statement filed on behalf of the defendant