IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 OP(C).No. 835 of 2010(O) ------------------------ OS.542/2004 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... PETITIONER ------------------------------ LT.COLN. CHARLE JOHN PETERS, CHRISTIAN, AGED 61 YEARS, CHERAS MANGALAM, KAZHAKUTTAM, ATTIPRA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN RESPONDENT(S): --------------- 1. SERAPHINE PETERS, CHRISTIAN, AGED 50 YEARS, W/O. LT.COL.MATHEW GEORGE, RESIDING AT ASHIRWAD, KOLLAKKA, VADAKKUMTHALA EAST, KOLLAM, REP. BY HER POWER OF ATTORNEY 2ND PLAINTIFF DOROTHY PETERS, PIN-690 536. 2. DOROTHY PETERS, W/O. TOM D'CRUZ, CHRISTIAN, AGED 45 YEARS, POOJA, DEWA NAGAR, 5A, KAZHAKUTTAM, THIRUVANANTHAPURAM-695 582. 3. JESEENTA PETERS, W/O. ALLESH VARGHESE, CHRISTIAN, POOTHIOTTU JOY VILLA, THATTARAMBALAM, MAVELIKKARA, PIN-690 103. 4. DEEPTHI PETERS, CHRISTIAN, AGED 35 YEARS, GOLDY'S NEST VADAKKUMBHAGAM, KAZHAKUTTAM, THIRUVANANTHAPURAM-695 582. 5. MARY LOUIS, W/O. LATE CHRISTIPHER, CHRISTIAN, AGED 40 YEARS, LOURDE COTTAGE, OPP. SANKAR HOSPITAL, ANJALI STREET, KOLLAM, REP. BY POWER OF ATTORNEY HOLDER A.V.THOMAS, RESIDING AT -DO-, PIN-691 001. OP (C) NO.835/2010 2 6. CHRISLYIN PETER (MINOR), S/O. LATE CHRISTOPHER, AGED 17 YEARS, -DO- -DO- 7. CHRISTINA PETERS, AGED 11 YEARS, -DO- -DO- (MINOR), (MINOR PLAINTIFFS 6 AND 7 REPRESENTED BY THEIR MOTHER 5TH PLAINTIFF) 8. JERALD PETERS, CHRISTIAN, AGED ABOUT 44 YEARS, RESIDING AT -DO- -DO- 9. VIMALA, AGED 43 YEARS, W/O.LATE PERDINAND PETER, BOB VILLA, VADAKKUMTHALA, KARUNAGAPPALLY, KOLLM 690536. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.835 of 2010 -------------------------------------- Dated this the 23rd day of November, 2010. JUDGMENT Respondents filed a suit for partition. Petitioner/defendant No.1 resisted the suit contending that respondents have no right to seek partition of the property. Later, he filed additional written statement setting up a Will which if accepted would disentitle respondents from claiming right over the property and filed an application to receive the additional written statement. That application was dismissed by the learned Additional Sub Judge-I, Thiruvananthapuram (in O.S.No.542 of 2004) observing that if petitioner wanted to incorporate additional facts he could have filed application for amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”). Petitioner challenges Ext.P5, order dismissing the application to receive additional written statement. 2. Except in answer to a counter claim or set off subsequent pleadings under Order VIII Rule 9 of the Code can be filed only with the leave of the court. In such subsequent pleadings, petitioner cannot set up a plea which is inconsistent with the contention that is already taken in the original written statement. In the original written statement there was no contention raised by the petitioner that in view of the Will respondents have no right over the OP(C) No.835/2010 2 property. If that be so the proper remedy of the petitioner was to seek amendment of original written statement. In that view learned Sub Judge is correct in passing Ext.P5, order. 3. Learned counsel requested that petitioner may be permitted to seek amendment of the written statement. I make it clear that if petitioner is otherwise entitled and circumstances warranted, it is open to the petitioner to file such application as provided under law and any such application if filed shall be dealt with by the learned Sub Judge as per law. Petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks