Reasons given for filing additional written statement found artificial.

M. KARPAGAVINAYAGAM, J.

( 1 ) KOLANDASAMY, the defendant is the petitioner herein.

( 2 ) THE respondent, sister of the petitioner, filed a suit for partition and separate possession of her 1/2 share in suit properties. According to her, the suit properties belonged to the maternal grandfather of the plaintiff and the defendant and after his death, the plaintiff and the defendant became entitled to 1/2 share each in the properties.

( 3 ) THE petitioner/defendant filed written statement stating that the deceased grandfather executed a Will in favour of the defendant and pursuant to the same, the petitioner alone is entitled to the suit properties. Moreover, the petitioner alone is in possession and enjoyment of the properties including the dwelling house. Therefore, the plaintiff is not entitled to any share.

( 4 ) IN view of the plea of the defendant with reference to the entitlement of the properties as per the Will, the defendants side was allowed to examine its witnesses first Accordingly, d. W. 1 to D. W. 3 were examined. After the defendants side was over, on the plaintiffs side, P. W. 1 was examined and the matter was posted for cross-examination P. W. 1.

( 5 ) AT that stage, the petitioner/defendant filed an application under Order 8 Rule 9 to grant him leave to file additional written statement raising question of law with reference to Section 23 of the Hindu Succession act by which the plaintiff being the female heir is not entitled to claim partition in the dwelling house.

( 6 ) THIS application was stoutly opposed by the plaintiff/respondent by filing counter contending that the said application was not only belated but also not bona fide with a view to drag on the proceedings. The trial Court upholding the objection raised by the plaintiff/respondent, dismissed the application. Hence, this Civil Revision Petition.

( 7 ) I have heard the counsel for the petitioner as well the respondent and gone through the impugned order and other records.

( 8 ) ON perusal of the affidavit and the counter statement filed before the trial Court, it is noticed that the suit for partition was filed by the plaintiff in the year 1994 in O. S. No. 444 of 1994. The written statement was filed by the petitioner/defendant contending that the defendant is entitled to the entire properties by virtue of the Will executed by the grandfather and that the entire properties are in possession and enjoyment of the defendant.

( 9 ) ON the basis of the pleadings in the plaint and written statement, issues were framed. Thereafter, the case listed for trial. As noted above, the defendants side commenced examination of its witnesses. After the examination of D. Ws. 1 to 3 was over, P. W. 1 entered into the box and gave deposition in chief. While the matter was posted for cross-examination, the petitioner/defendant chose to file the petition under Order 8 Rule 9 seeking permission to file additional written statement, on 22. 11. 2000 stating that the plaintiff would not be entitled to claim partition in view of section 23 of the Hindu Succession Act.

( 10 ) THE reason given in the affidavit filed before the trial Court for not having raised this point in the earlier written statement is his inadvertent mistake and oversight. The trial court rejected the said plea observing that the said reason is not acceptable, besides it is belated. It is also observed that when the comprehensive issue was already framed as to whether the plaintiff would be entitled to the partition of the suit properties, the question of entitlement with reference to Section 23 of the Hindu Succession Act would be argued after the conclusion of trial.

( 11 ) ORDER 8, Rule 9 of Code of Civil Procedure reads thus: “no pleading subsequent to the Written statement of a defendant other than by way of defence to a set-off (or counterclaim) shall be presented except by the leave of the Court and upon such terms as the Courts thinks fit, but the Court may at any time require a written statement