1. The learned Subordinate Judge refused permission to file an additional written statement with a fresh plea mainly on the ground, that the proposed additional plea was inconsistent with the pleas already set out in the written statement. The substantial line of defence chalked out in the original written statement was that the first defendant was a partner of the plaintiff. The plea in the proposed additional written statement was that it was the first defendant's father, Muhammad Sultan Maricair, that was the partner. The decision in Vava Rowther v. Sulaiman Rowther (1989) 32 L.W. 61 should suffice to hold that even if the plea is an inconsistent one, there is no legal bar to a consideration of such a plea. If both the pleas had been put forward in the written statement as originally filed, that would have been legally permissible, and the Court would have been called upon to investigate both the pleas, subject, of course, to the provisions of Order 6, Rule 16 of the Civil; Procedure Code, despite the fact that they were inconsistent pleas. Therefore the only question to consider, when an apparently inconsistent plea is put forward in an additional written statement is, whether it is expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage. The suit has not come up for trial though it has been pending for some time. I am unable to see how the proposed additional plea, though inconsistent, would embarrass the trial of the suit. The plaintiff would have to make out that he was the sole owner of the Panruti business. If the defendants are able to show whoever might be the partners the business was not the sole business of the plaintiff, that should suffice to non-suit the plaintiff in the action as he has framed it.
2. No doubt, as early as June, 1945, the admission on which the petitioners-defendants relied was made by the plaintiff in other proceedings. The first defendant waited for those proceedings to terminate before coming forward with his request for an additional written statement. There was delay, but that delay can be adequately compensated by award of costs.
3. The revision petition is allowed; the order of the lower Court is set aside; and the petitioner first defendant will be allowed to file the additional written statement on condition he deposits into Court within three weeks from this date a sum of Rs. 100 to be paid over to the plaintiff independent of the ultimate result of the litigation. The parties to these proceedings will bear their respective costs in both the Courts.