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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.04.2019

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN

C.R.P.(PD).No.4730 of 2014

and

M.P.No.1 of 2014

1.Soundarajan

2.Sekar

.. Petitioners

vs.

1.Vijayalakshmi

2.Santhi

3.Jayanthi

4.Susila Jenifer

5.Andal

.. Respondents

PRAYER: Civil Revision petition is filed under Article 227 of the Constitution of

India, against the order and decretal order dated 17.07.2014 made in

I.A.No.126 of 2013 in O.S.No.23 of 2008 on the file of the III Additional District

Court, Puducherry.

For Petitioners

: Mrs.V.Srimathi

For Respondents

: Mr.B.Vijay

O R D E R

The petitioners are the defendants in O.S.No.23 of 2008 before the III

Additional District Judge, Pondicherry. The respondents had filed the suit for

partition of the suit Schedule properties. In the said suit, the petitioner’s had

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also filed their written statement on 14.10.2008. It appears that the suit was

decreed ex parte and thereafter the said order was set aside.

2. At that stage the petitioners sought to file additional written

statement and therefore filed an application under Order 8 Rule 9 of CPC read

with Section 151 of CPC vide I.A.No. 126 of 2013.

3. The respondents/plaintiffs filed their counter opposing the leave to

file additional written statement on the ground that that the additional written

statement proposed to be filed was belated after a new counsel was engaged

and due change of opinion.

4. The court has observed that in the original written statement the

petitioners have expressed their willingness for partition but in the additional

written statement to have stated that the suit property was a dwelling house

and cannot be partitioned. Therefore the petitioner’s have taken a destructive

stand and were not willing for partition of the dwelling house. Apart from the

above, the petitioner’s have made several averments on facts.

5. In B.K.Narayana Pillai vs Parameswaran Pillai (2001) 1 SCC 712 the

Court held as follows:-

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“ The principles applicable to the amendments of

the plaint are equally applicable to the

amendments of the written statements. The courts

are more generous in allowing the amendment of

the written statement as the question of prejudice

is less likely to operate in that event. The

defendant has a right to take alternative plea in

defence which, however, is subject to an exception

that by the proposed amendment the other side

should not be subjected to injustice and that any

admission made in favour of the plaintiff is not

withdrawn. All amendments of the pleadings should

be allowed which are necessary for determination

of the real controversies in the suit provided the

proposed amendment does not alter or substitute a

new cause of action on the basis of which the

original lis was raised or defence taken. Inconsistent

and contradictory allegations in negation to the

admitted position of facts or mutually destructive

allegations of facts should not be allowed to be

incorporated by means of amendment to the

pleadings. Proposed amendment should not cause

such prejudice to the other side which cannot be

compensated by costs. No amendment should be

allowed which amounts to or relates (sic results) in

defeating a legal right accruing to the opposite

party on account of lapse of time. The delay in

filing the petition for amendment of the pleadings

should be properly compensated by costs and error

or mistake which, if not fraudulent, should not be

made a ground for rejecting the application for

amendment of plaint or written statement.”

6. In P.A. Jayalakshmi vs H. Saradha, (2009) 14 SCC 525 while

considering the correctness of the order dismissing the leave to file to

addit