New case set up in the proposed additional written statement.

Defendants 2 to 4 in the suit are the revision petitioners before me. The first respondent plaintiff filed the suit for partition in respect of the schedule properties in the plaint. The first defendant in the suit who is now the second respondent before me contended before the trial Court that a registered partition had already taken place in the family in the year 1958 and therefore, a second partition does not lie. The first defendant further contended that many of the suit items are his self-acquired properties which are not liable for partition. Defendants 2 to 4 who are the present revision petitioners filed a written statement through their counsel and admitted in their written -statement that a registered partition had taken place in e family on 23rd November, 1973, and specifically stated that nothing remained to be divided after the said partition. The petitioners herein further contended that there is no question of accounting between the parties and that the first defendant is doing business separately and that he has nothing to do with the family. It is common ground that the suit was filed in the year 1982 and the suit was listed for trial and the case taken up. P.W.1 was examined and cross examined. At that stage, defendants 2 to 4 filed an application to file an additional written statement and on objection by the first defendant-second respondent, the learned Subordinate Judge dismissed the application. Hence, the revision.

2. Learned counsel for the petitioners argued that these defendants could not give all the particulars in the original written statement and that they are giving only additional particulars in the proposed written statement. Learned counsel also cited certain rulings before me which are as follows.

3. The first decision cited is Prasant Chandra Sen v. United Commercial Bank, A.I.R. 1982 Cal. 568, wherein a written statement was sought to be accepted and in that case it was held that even if there is an inconsistent claim, it can be allowed by way of amendment. That was a case where the United Commercial Bank filed a suit for recovery of money against two defendants. The first defendant was a company in liquidation and the second defendant was the guarantor. The second defendant guarantor denied the guarantee of repayment of the outstanding dues of the plaintiff bank. In the amended written statement the second defendant pleaded that the alleged guarantee had come to an end and therefore he is not liable to pay any amount. On those facts, the learned Judges held that in an application for such amendment, the Court will have to find out whether there is mala fides or not in the application and if it is found that there is no mala fides the amendment can be allowed even if there is an inconsistent plea in the written statement.

4. The next case cited at the bar is V.P. Palani sami and another v. Deivanaiammal, (1983)2 M.L.J. 547: I.L.R. (1984)1 Mad. 194: A.I.R. 1984 Mad. 19: 96 L.W. 560, 96 L.W. 560. That was a suit for partition and a preliminary decree was passed. A final decree application was filed and a Commissioner was appointed to divide the properties. During the time of the inspection of the Commissioner according to the plaintiffs, it was found that a well was omitted to be included in the list of properties in one of the survey numbers as available for division. Consequently, an application under Or.6, R.17, C.P.C., was filed to include the said well. In that context. This Court; set aside the order of the lower Court refusing to allow the amendment and directed the property to be included in the final decree application. The last case cited on behalf of the petitioners is Iswar Jagannath v. Fatik Chandra, A.I.R. 1972 Cal.372, the decision in which says that just relief should not be refused for some infraction of rules of procedure, mistake, inadvertence or negligence. The principles laid down in these cases cannot be disputed. But each case has to be decided on its own m