C ABDUL LATHEEF Vs. CHEMBUKANDY SAFIYA

JUDGEMENT

(1.) DEFENDANT No.5 in O.S. No.192 of 2005 of the court of learned Sub Judge, Kozhikode is aggrieved by Ext.P5, order dismissing I.A.No.1762 of 2010 to incorporate a specific plea regarding limitation as regards claim for partition made by respondent Nos.1 and 2-plaintiffs. Learned Sub Judge dismissed the application for the reason that it is belated and that petitioner cannot be permitted to raise plea of limitation during the course of hearing. Learned sub judge observed that application is devoid of merit and is liable to be dismissed. It is contended by learned counsel for petitioner that though plea of limitation has already been raised in the written statement a specific plea was not raised and hence such a plea is raised in the additional written statement which was requested to be received vide I.A. No.1762 No.2010. Learned counsel for respondent Nos.1 and 2 contended that application is without merit and is highly belated.

(2.) IT is not as if there is no semblance of a plea regarding limitation raised by petitioner and others in the written statement originally filed. In the additional written statement (Ext.P3) filed along with I.A. No.1762 of 2010 what is required is to specifically state that claim for partition is bared limitation in view of earlier partition which petitioner and others asserted. This Court in Musliarakath Abdulla v. Abdul Azeez Naha (2006 [2] KLT 228) stated that question of limitation is one of law and if on the averments in the plaint suit is not barred by limitation defendants will have to deny the averments and plead that suit is bared by limitation. In the absence of such a contention averments in the plaint regarding cause of action will have to be accepted, it is held. In the light of that decision petitioner and other contesting defendants wanted to make their plea of limitation specific and accordingly filed additional written statement (Ext.P3) with application (Ext.P4) to receive the same. I am not persuaded to think that a new plea which does not have any foundation in the written statement already filed is attempted to be raised at the fag end of the proceeding. Order VIII Rule 9 of the Code of Civil Procedure permits subsequent pleadings to be filed of course with the leave of court. I have gone through the written statement filed by petitioner and others, Ext.P3, additional written statement and Ext.P4, application to receive the same. Having regard to the circumstances I am persuaded to think that petitioner and others ought to be allowed to raise a specific plea regarding limitation. In the circumstances order dismissing I.A.No.1762 of 2010 cannot be sustained. Resultantly, Writ Petition is allowed. Exhibit P5, order is set aside and I.A.No.1762 of 2010 will stand allowed. If it is found necessary learned Sub Judge shall frame additional issues and proceed with the suit as provided under law.