JUDGMENT

P. K. BALASUBRAMANYAN, CJ. — This revision is by the defend¬ants in a suit for partition. The plaintiff, the opposite party herein, filed the suit claiming that he was the adopted son of one Badrinarayan Satapathy through his first wife. Defendant No. 1 claims to be the second wife of late Badrinarayan Satapathy and defendant No. 2 is her daughter through Badrinarayan Satapathy. Defendants 1 and 2 filed a written statement challenging the status of adopted son put forward by the plaintiff in the suit.

2. The suit was posted for steps and ultimately it was posted for ‘hearing’. On that day, defendants 1 and 2 filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking to amend their written statement and seeking to include a counter claim seeking a declaration that the deed of adoption relied on by the plaintiff was void. It appears that the plea sought to be introduced is one of non-est factum. This applica¬tion for amendment of the written statement was opposed by the plaintiff on whose behalf it was contended that an application for amendment could not be entertained since the suit was posted for ‘hearing’ in view of the amendment to Order 6, Rule