JUDGMENT The judgment of the Court was as follows :–– This revisional application is at the instance of a plaintiff in a suit for partition and is directed against an order dated May 7, 2001 passed by the learned District Judge, Alipore in Civil Revision Case No. 235 of 2001 thereby dismissing a revisional application under Section 115A of the Code preferred by the petitioner against an order dated March 23, 2001 passed by the learned Trial Judge. 2. The suit for partition was filed by the present petitioner against the opposite party, one of his brothers on the allegation that the property was jointly purchased by them. 3. The opposite party is contesting the said suit by filing a written statement. 4. Subsequently, when the suit was ready for hearing, at that stage, the opposite party came up with an application for acceptance of additional written statement. In the proposed additional written statement the opposite party wanted to include some other properties left by the father of the parties. He also tried to incorporate the counter-claim asserting that he is the sole owner in respect of A schedule property. 5. The learned Trial Judge having allowed such application, the petitioner preferred the revisional application under Section 115A of the Code before the learned District Judge and by the order impugned herein the said Court has dismissed the revisional application summarily. 6. Being dissatisfied the plaintiff has come up with the instant revisional application under Article 227 of the Constitution of India. 7. After hearing Mr. Bhattacharya appearing on behalf of the petitioner and Mr. Mondal appearing on behalf of the opposite party and after going through the materials-on-record, I find that both the Courts below acted illegally and with material irregularity in permitting the opposite party to file additional written statement in the fact of the present case. 8. The suit having been tiled on the allegation that two of the brothers purchased the property jointly, in such a suit there is no scope of including other properties left by the father of the parties, particularly when father has left other heirs than the parties to the present suit. 9. Therefore, in such a case, all heirs and legal representatives of the deceased father will not be necessary parties. 9. Therefore, in such a case, all heirs and legal representatives of the deceased father will not be necessary parties. Within the scope of the present suit there is no necessary of bringing those properties, when the plaintiff is not willing to bring those properties within the hotchpotch. 10. Similarly, counter-claim incorporated in the additional written statement was also not maintainable, when the defendant did not file such counterclaim at the time of filing of original written statement. On that score also the additional written statement cannot be accepted. 11. Mr. Mondal appearing on behalf of the opposite party submits that the learned Trial Judge having accepted the additional written statement on payment of cost and the plaintiff having accepted such cost, is precluded from challenging the said order accepting the additional written statement. I am afraid, such contention is not tenable in the eye of law. Now, it is settled law that even if any conditional order is passed on payment of cost and such cost is accepted by other side, such party can challenge such order before higher forum. The petitioner, however, is directed to refund the said cost within fortnight from date. Such cost must be refunded to the learned Advocate for the opposite party in this Court. 12. I thus set aside the order impugned and reject the application for acceptance of additional written statement. 13. The revisional application is thus allowed. Let xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties within one week after re-opening.