( 1 ) BY this order, I propose to dispose of the application registered as I. A. No-2685/1995 filed by the plaintiff praying for striking out the averments made in the written statement, which is in the nature of complete departure from the original statements.

( 2 ) THE plaintiff filed the present suit seeking for a decree for partition and declaration. The aforesaid suit was contested by the defendant No. 4 now arrayed as defendant No. 3 by filing a written statement on 18. 3. 1982 to which a replication was also filed. On the basis of the pleadings of the parties, issues were framed in the suit on 22. 11. 1985 and additional issues were also framed on 30. 1. 1986. Under the aforesaid order dated 30. 1. 1986 the plaintiff was directed to file an amended plaint and also to make up the deficiency in the Court fee. The said order records the undertaking of the learned counsel of the plaintiff to amend the plaint and seek the relief of possession and pay ad valorem court fee.

( 3 ) PURSUANT to the aforesaid order, the plaintiff filed an amended plaint on 25th February, 1986. A copy of the said amended plaint is placed on record. It is stated that the aforesaid amended plaint was only formal and pursuant to the order for amendment of the plaint for seeking the relief of possession and paying the ad valorem Court fee. Therefore, the written statement to the amended plaint could be filed by defendant No. 3 only in respect to the amended portions in the plaint, retaining the averments made in the earlier written statement as it is. It is stated by the plaintiff that instead of filing a written statement to the amended plaint, defendant No. 4, who was subsequently made defendant No. 3, filed a written statement going beyond the permissible limit and adding thereto a number of fresh averments and even going to the extent of withdrawing the admission made in the written statement. It is stated that no amendment of the written statement was sought for by the said defendant and in absence thereof the said defendant could not be permitted to file a written statement going beyond the amended portion and withdrawing the admission. Hence, the present application.

( 4 ) THE aforesaid application is contested by defendant No. 3 contending, inter alia, that the amended written statement was filed on 19. 3. 1986 as against which a replication was also filed countering the statements made in the written statement. At that stage, the plaintiff did not take any objection as against the aforesaid insertion of fresh and new statements in the written statement. It is also stated that on the pleadings of the parties, even additional issues were framed by this Court and, therefore, in view of absence of any objection on behalf of the plaintiff in that regard, the written statement filed by defendant No. 3 to the amended plaint deemed to have been accepted and that also amounted to the Court accepting and allowing the amendment.

( 5 ) MR. Arun Mohan, counsel for the plaintiff, however, submitted that defendant No. 3 could not have filed a written statement incorporating therein a fresh and new case than what was pleaded in the original written statement without obtaining permission from the Court for such amendment. Further submission of the counsel appearing for the plaintiff that the amendment in the plaint was only formal in nature and to that extent only written statement could have been amended and under the garb of the same, defendant No. 3 could not have introduced a new case by taking out admissions made in the original written statement. In support of his contention, the learned counsel relied upon the Full Bench decision of this Court in Kedar Nath and Ors. Vs. Ram Parkash and Ors. ; reported in 76 (1998) Delhi Law Times 755 (FB ). Learned counsel also relied upon the decision in Heeralal Vs. Kalyan Mal and others; reported in AIR 1998 Supreme Court 618.

( 6 ) MR. L. R. Gupta, learned counsel appearing for defendant No. 3, ho