Additional written statement not introducing any new averment nor any prejudice is caused to plaintiff.

The defendants in O.S.No.553 of 1999 on the file of the II Addl. District Munsif, Coimbatore are the revision petitioners.

2. The respondents in this revision petition as plaintiffs have approached the trial Court, for the relief of partition of the suit property and for permanent injunction against defendants 1 to 4, from alienating or encumbering the suit property.

3. The plaintiffs in the plaint have traced title to the suit property to the original owners viz., Narayanaswamy Naidu and Perumal Naidu, who are brothers. As per the averments in the plaint, the owners of the property settled the same in favour of Narayana Naidu and Rangaswamy Naidu. The plaintiffs, tracing the succession under them, have filed the suit, for partition of their 3/7th share in the suit property.

4. The defendants/revision petitioners have filed their written statement elsewhere in the year 2000, wherein as seen from the original written statement, they have admitted that the suit property originally belonged to Narayanasamy Naidu and Perumal Naidu. It is also the further admission of the defendants/revision petitioners that they had executed a registered settlement deed dated 20.7.1959 in favour of Narayana Naidu and Ayyammal, which is the source of the title for the plaintiffs, as well as for some of the defendants. The defendants admitting the original title in favour of Narayanaswamy Naidu and Perumal Naidu, further conceding that they had executed a settlement deed, would contend that Ayyammal was given only a limited life time of enjoyment towards her maintenance, which right had enlarged under Section 14(1) of the Hindu Succession Act, in addition to some other defence also.

5. On the basis of the above averments, parties went on trial before the trial Court and the first plaintiff entered into the box on 7.7.2003 and it appears, his examination was over on 21.7.2003, as seen from the deposition copy of P.W.1 furnished by the revision petitioners. At this stage, the contesting defendants 1, 2 & 4 have filed a petition under Order VIII Rule 9 of C.P.C., seeking permission of the Court, to file an additional written statement, wherein they have questioned the capacity of the settlors, under the settlement deed dated 20.7.1959, on the ground, since the property originally belonged to two brothers as ancestral property or coparcenary property, as the case may be, they had no right to settle the property and in this view, the settlement deed is not legally valid.

6. The plaintiffs have opposed the claim of the defendants, to introduce such a plea by way of additional written statement, by filing a detailed counter, since the averments in the additional written statement are opposite to the original written statement, which aims to take away the right conferred upon the plaintiffs, on the basis of admission.

7. The learned trial Judge, upon consideration of the rival cases of the parties, felt that the contesting defendants should not be permitted to file additional written statement, since they sought to introduce a new case in the additional written statement, which is quite contrary to the original written statement, nullifying the admission already made in the written statement. In this view, he dismissed the application, which is under challenge in this revision.

8. Heard the learned counsel for the petitioners, Mr. K. Govindarajan and the learned counsel for the respondent, Mr. N. Mani.

9. The learned counsel for the petitioners submits, that by filing the additional written statement, the defendants are not taking inconsistent defence and therefore, on that ground, refusal to give permission for the reception of the additional written statement is erroneous, since Order VIII Rule 9 has not imposed any such bar. It is the further submission of the learned counsel for the revision petitioners, that under the additional written statement, they want to explain the nature of property and thereby, they want to say the settlement deed is n