MOHAMMED ALI Vs. KHUTEJATUL KUBRA

JUDGEMENT

(1.) THE short point that arises for consideration in the crp is whether the defendants can raise a new plea or a new claim by way of an additional written statement under order 8, Rule 9 of the CPC.

(2.) THE plaintiffs have filed a suit for partition and for separate possession of their l/4th share in the suit schedule property. The defendants have filed a written statement contesting the said claim. In the written statement they have taken up a contention firstly, that the sale in favour of the plaintiffs by the first defendant is not valid and legal and it does not bind the other defendants. Secondly, they contend it a pre-emptive right to purchase that l/4th share from the first defendant and when the plaintiffs have purchased the l/4th share in contravention of the pre-emption right, no title passes to them. Thirdly, they have contended the sale transaction in favour of the plaintiffs is collusive and a sham transaction and title does not pass. On these pleadings, the trial court has framed issues. It is thereafter the present application i. a. No. 5 is filed purporting to be under order 8, Rule 9 of the CPC for permission to file an additional written statement. In the additional written statement the plea they want to raise is that the plaintiffs are benamidars of their husbands and therefore the sale deed under which plaintiffs claim title do not confer title and in the absence of husbands being made parties the suit is not maintainable. The said application was opposed by the plaintiffs. On consideration of the rival contentions, the trial court has rejected the said application. It is against the said order the present revision is filed.

(3.) LEARNED counsel for the petitioners submits that in law, plea, which is inconsistent with the original stand, could be raised by way of additional written statement. Further, she contends the plea now sought to be raised by way of additional written statement, namely the nature of transaction is already pleaded in the original plaint. Therefore, it cannot be said that it is a new plea and therefore she contends the impugned order cannot be sustained and therefore it is liable to be set aside.