The main legal point established in the judgment is that a counter claim can be made against a co-defendant in a partition suit, and the filing of an additional written statement to raise a counter claim is permissible under Order 8 Rule 6A of CPC.

1. The petitioners are the second and third defendants in O.S. No. 86 of 2008 on the file of the Sub Court, Perambalur. They are aggrieved against the order passed in I.A. No. 295 of 2010 wherein and whereby the application filed by the first defendant under Section 151 CPC seeking permission to file additional written statement was allowed. The second respondent herein is the plaintiff in the said suit. She prayed for partition of 1/6th share in the suit properties and for separate possession of the same. The plaintiff and the defendants 1 to 3 are brothers and sisters and they are the children of one Abdul Muthaleef.

2. It is the case of the plaintiff that the suit properties were purchased by their father 20 years ago and he died on 15.6.1986 intestate. After his death, both the plaintiff and the defendants are entitled to their respective shares in the suit properties as the legal heirs of the said Abdul Muthaleef. According to the plaintiff, the sons viz., the second and third defendants are entitled to 2/3rd share and the daughters viz., the plaintiff and the first defendant are jointly entitled to 1/3rd share. Thus, the plaintiff filed the said suit seeking for partition of her 1/6th share in the suit properties.

3. The first defendant filed a written statement and contended that she is also entitled to 1/6th share in the suit properties and was always ready for amicable partition between the parties. It is specifically contended by her at paragraph 10 of the written statement that she is an illiterate lady and taking advantage of the same the second and third defendants got her thumb impression in a release deed by falsely stating that she was shown as a witness to a document and got the said release deed registered before the Sub-Registrar's Office. The said fact of execution of release deed came to the knowledge of the first defendant only from the written statement filed by the defendants 2 and 3. Thus, it is contended by the first defendant that the said release deed is a fraudulent document and liable to be set aside and for which purpose she will pay the necessary court fee at the time of passing the judgment and decree. It is her specific case that she has not executed the release deed dated 19.12.2004 voluntarily and did not receive Rs.40,000/- at any point of time from the defendants 2 and 3.

4. The first defendant, after filing such written statement, filed I.A. No. 295 of 2010 and sought permission to file an additional written statement on 1.10.2010 to specifically raise a counter claim to set aside the said release deed dated 19.12.2004 and for payment of court fee for such purpose.

5. The said application was resisted by the defendants 2 and 3. It is their case that when all the parties have been examined and the suit was also at the part heard stage, the first defendant cannot file the additional written statement. The first defendant did not take any steps to make the counter claim all these years and therefore it is not open to her to claim the same just before the disposal of the suit that too after the arguments of both sides are over.

6. The Court below after considering the rival submissions as well as the pleadings of the respective parties allowed the application by holding that what is sought to be raised in the additional written statement had already been raised in the original written statement itself and therefore there is no prejudice caused to the second and third defendants. The learned Judge found that the relief is not barred by limitation and however, imposed a cost of Rs.1000/-to be paid by the first defendant to the second and third defendants on the reason that the application came to be filed belatedly. When the cost amount was not received by the defendants 2 and 3, even though the same was tendered by the first defendant in time, the Court below, by recording the said fact, allowed the application. Aggrieved against the same, the present Civil Revision Petition is file