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2002 DIGILAW 426 (PNJ)

Om Parkash L. R. of Mohant Garib Dass v. Uco Bank

2002-04-22

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 has assailed the orders dated 13.6.2001 and 30.8.2001, passed by the Civil Judge (Sr. Division), Hoshiarpur. By first order, the Civil Judge has struck off the defence of the original defendant and by the second order, the legal representative of defendant-petitioner Mohant Garib Dass has been allowed to be impleaded but because of the order dated 13.6.2001 striking the defence, the newly substituted legal representative has not been permitted to file written statement. Feeling aggrieved by the aforementioned two orders, the newly substituted legal representative has filed the present revision petition. 2. Brief facts of the case as unfolded in the pleadings of the parties are that the plaintiff-respondent had filed Civil Suit No. 100/99 on 17.9.1999, for recovery against one Mohant Garib Dass, alleging that a loan of Rs. 3,14,000/- was obtained by the Mohant for planting trees in his land. The original defendant Mohant Garib Dass was served on 17.8.2000. Mohant Garib Dass appeared before to Court on 8.9.2000 which was the first date for filing of the written statement and made a request for supply of documents on the basis of which plaintiff-respondent-Bank has based its claim for non-payment of the loan. Thereafter, on the next date of hearing, when the necessary documents were not supplied, an application under Order 11 Rule 14 was filed seeking production of documents. It was claimed that according to the provisions of Order 7 Rule 14, the documents relied upon by the plaintiff- respondent in their plaint, may be directed to be supplied to the defendant- petitioner. On 5.12-2000, the plaintiff-respondent requested for time to file reply to the application. Thereafter, on 21.3.2001, the plaintiff-respondent filed an application under Order 6 Rule 17, seeking amendment of the plaint which was allowed on 9.2.2001. With the amended plaint, certain documents were annexed but still the copies of those documents were not supplied to the defendant-petitioner. 3. On 31.1.2001, the original defendant-petitioner Mohant Garib Dass expired. After the death of Mohant Garib Dass, the original defendant, presumably the communication between Mohant Garib Dass and his counsel came to a standstill and on 13.6.2001, the Civil Judge irked by repeated adjournments, struck off the defence of the defendant-petitioner. The order dated 13.6.2001, reads as under : Present : Sh. O.P. Pathania, Advocate for Plaintiff. Sh. After the death of Mohant Garib Dass, the original defendant, presumably the communication between Mohant Garib Dass and his counsel came to a standstill and on 13.6.2001, the Civil Judge irked by repeated adjournments, struck off the defence of the defendant-petitioner. The order dated 13.6.2001, reads as under : Present : Sh. O.P. Pathania, Advocate for Plaintiff. Sh. B.M. Walia, Advocate for defendant. Written statement not filed despite last opportunity. Subsequently number of adjournments has already been granted to the defendant to file written statement. The defendant has put appearance as back as on 17.8.2000 and written statement has not yet been filed despite granting sufficient number of adjournments. Accordingly, the defence of the defendant is struck off. Case is adjourned to 30.8.2001, for evidence of the plaintiff. Sd/- Vivek Puri CJ (SD) 13.6.2001." 4. The legal representative of Mohant Garib Dass filed an application for substitution in August, 2001 as the defence of the original defendant Mohant Garib Dass had been struck off on 13.6.2001. The application was allowed on 30.8.2001 by the Civil Judge imposing the condition that no written statement could be filed by legal representative Om Parkash, however, he would be entitled to cross-examine the witnesses to be examined by the plaintiff- respondent. The order dated 30.8.2001 reads as under : "Counsel for the plaintiff has made a statement that he has no objection if LRs of the defendant are impleaded as party to the present suit but they may not be permitted to file written statement, since defence of the defendant has already been struck off vide order dated 13.6.2001. In view of the statement made by the counsel for the plaintiff, the application filed by the applicant stand allowed and Om Parkash Chela of Mahant Garib Dass, resident of Village Phambian, tehsil and district Hoshiarpur, is impleaded as LR of the defendant since deceased, subject to all just exceptions because defence of the defendant has already been struck off vide order dated 13.6.2001 so, now LR Om Parkash who has stepped into the shoes of defendant cannot be permitted to file written statement. However, the defendants/their counsel would be at liberty to cross-examine the witnesses to be examined by the plaintiff. Case is now adjourned to 3.10.2001 for evidence of the plaintiff." 5. However, the defendants/their counsel would be at liberty to cross-examine the witnesses to be examined by the plaintiff. Case is now adjourned to 3.10.2001 for evidence of the plaintiff." 5. Shri Puneet Jifidal, learned counsel for the defendant-petitioner has argued that both the orders are palpably illegal and are liable to be set aside as they would result into irreparable injury and would also occasion failure of justice to the defendant-petitioner. Placing reliance on the provisions of Order 22 Rules 2, 3 and 4 of the Code of Civil Procedure, the learned counsel submitted that the defendant-petitioner is entitled to file written statement raising all the pleas which the deceased original defendant could have raised except the ones which are personal to the deceased- defendant. In support of his argument, he has relied upon a judgment of the Supreme Court in the case of Bal Kishan v. Om Parkash, AIR 1986 SC 1952. The learned counsel has argued that imposing the restriction on filing of the written statement on the ground that on 13.6.2001, the order striking off the defence was passed, would result into failure of justice and grave injury to the defendant-petitioner. He has further submitted that Mohant Garib Dass had died on 31.1.2001 and orders dated 13.6.2001 could not have been passed against him as he had already died. According to the learned counsel, it was because of the death of Mohant Garib Dass that no instructions could be imparted to the learned counsel representing Mohant Garib Dass. Therefore, the learned counsel has submitted that both the orders i.e. dated 13.6.2001 and 30.8.2001, are liable to be set aside. 6. Shri Pawan Bansal, learned counsel for the plaintiff-respondent has argued that it was the duty of the Lawyer to inform the Court about the death of Mohant Garib Dass as is contemplated by Order 22, Rule 10-A. He has further argued that despite the death of Mohant Garib Dass on 31.1.2001, his counsel has been representing him and appearing. He has cited the judgment in the case of Baljinder Singh v. Gurvinder Kaur, (1998-2)119 PLR 287 and judgment in the case of Major Rajbir Singh v. Surinder Kaur, 1994 PLJ 464. He has cited the judgment in the case of Baljinder Singh v. Gurvinder Kaur, (1998-2)119 PLR 287 and judgment in the case of Major Rajbir Singh v. Surinder Kaur, 1994 PLJ 464. On the basis of the aforementioned two judgments, the learned counsel has argued that the permission for impleading the L.Rs under Order 22 Rules 3 and 4 is nothing else but a substitution of the original defendant with the new one. It would not automatically entitle the L.Rs to file amended written statement as the rights of the L.Rs are not better than the ones enjoyed by the deceased. In the end, he has prayed for dismissal of the revision petition. 7. Having heard the learned counsel for the parties and perusing the record, I am of the considered opinion that this revision petition merits acceptance and both the orders dated 13.6.2001 and 30.8.2001 are liable to be set aside. In so far as the order dated 13.6.2001 striking off the defence of deceased Mohant Garib Dass is concerned, the provision of Order 8 Rule 11 added by Punjab and Haryana, can be usefully referred, which read as under : "Punjab and Haryana - The following Rules have been added : "11. Every party, whether original added or substituted, who appears in any suit or other proceedings shall on or before the date fixed in the summons, notice or other process served on him as the date of hearing, file in Court a proceeding stating his address for service, and, if he fails to do so, he shall have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just. 12. Rules 20, 22, 23, 24 and 25 of Order 7 shall apply, so far as may be, to addresses for service filed under the preceeding rule". (24.11.1927) : Act 31 of 1966. Note :- Rule (Punjab). This Rule applied to defendants who are corporations as well as the other defendants. 12. Rules 20, 22, 23, 24 and 25 of Order 7 shall apply, so far as may be, to addresses for service filed under the preceeding rule". (24.11.1927) : Act 31 of 1966. Note :- Rule (Punjab). This Rule applied to defendants who are corporations as well as the other defendants. The Rule is mandatory so far as the filing of the proceeding stating the address for service is concerned; but the matter is left to the discretion of the Court and it is not bound to strike off the defence of the defaulting party in every case." 8. A perusal of the above rule shows that it proceeds with assumption that the served defendant is alive. In the present case, Mohant Garib Dass had expired on 31.1.2001 and there is no dispute with regard to his date of death either raised before the Civil Judge or before this Court. Therefore, such an order could not be continued by the Civil Judge once he has come to know about the date of death of Mohant Garib Dass. Even otherwise, the rule is not mandatory as it gives ample discretion to the Courts to pass such an order as it thinks just. Therefore, it cannot be claimed that in all cases of default, the defence of the defendant should be struck off. Moreover, no order can be passed against a dead person. Therefore, the order dated 13.6.2001 is liable to be set aside. Once that order is declared illegal, then the position of defendant-petitioner Om Parkash would be equivalent to that of Mohant Garib Dass and he would be entitled to raise all the pleas in his written statement which would have been raised by Mohant Garib Dass himself. 9. The order dated 30.8.2001, imposing the condition that no written statement is to be filed because of the order dated 13.6.2001, would also be set aside. The order dated 30.8.2001 is that under Order 22 Rules 3 and 4, the newly added legal representative is entitled to make any defence appropriate to his character as legal representative of the deceased-defendant. In this regard, the observation of their Lordships of the Supreme Court in the case of Bal Krishan (supra) can appropriately be referred. The order dated 30.8.2001 is that under Order 22 Rules 3 and 4, the newly added legal representative is entitled to make any defence appropriate to his character as legal representative of the deceased-defendant. In this regard, the observation of their Lordships of the Supreme Court in the case of Bal Krishan (supra) can appropriately be referred. which reads as under : "Order 22 Rule 4 of the Code of Civil Procedure, 1908 provides that where one of two or more defendants dies and the right to sue does not survie against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Since their action in this case related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative Bal Krishan of the deceased Musadi Lal on record. Sub-rule (2) of Rule 4, Order 22, authorises any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased defendant. The said sub-rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement or objections raising all pleas which the deceased tenant (defendant) had or could have raised except those which were personal to the deceased defendant or respondent. In the instant case, Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chater Jee v. Sri Kishan, (1973)1 S.C.R. 850 : (A.I.R. 1972 S.C. 2526). The relevant part of that decision at page 854 (of SCR) : (at pp. The relevant part of that decision at page 854 (of SCR) : (at pp. 2528-29 of A.I.R.) reads thus : "Under sub-clause (ii) of Rule 4 of Order 22, Civil Procedure Code, any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representative could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed, this does not prevent the legal representative from setting up also their own independent title, in which case there could be objection to the Court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title." 10. However, the judgment in Bal Kishans case (supra) has been explained further to point out that the legal representative of the defendant cannot plead those acts which are necessarily related to his personal or individual defence. If the legal representative intends to plead any personal or individual defence, then it would be necessary to seek that relief by moving an application under Order 1, Rule 10. In somewhat similar circumstances, when the legal representative intended to plead personal or individual defence beyond the defence that was available to the deceased their Lordships in the case of Vidyawati v. Manmohan and others,(1996-1)112 PLR 97 (SC), observed as under : "It is seen that the petitioners claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now admitted across the Bar that the first defendant had life interest created under the will executed by Champawati Therefore, the said interest is co-terminus with his demise. Whether the petitioner has independent right, title and interest de hors the claim of the first defendant is a matter to be gone into at a later proceeding. It is true that when the petitioner was impleaded as a party- defendant, all rights under Order 22 Rule 4(2), and defences available to the deceased defendant became available to her. Whether the petitioner has independent right, title and interest de hors the claim of the first defendant is a matter to be gone into at a later proceeding. It is true that when the petitioner was impleaded as a party- defendant, all rights under Order 22 Rule 4(2), and defences available to the deceased defendant became available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the court below has taken rightly. 4. This court is Bal Kishan v. Om Parkash, A.I.R. 1986 S.C. 1952 has said thus :- "The sub-rule (2) of Rule 4 of Order 22 authorises the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased- defendant or respondent." The same view was expressed in Jagdish Chander Chatterjee v. Sri Kishan, 1973(1) S.C.R. 850 wherein this Court said : "......The Legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title." 11. From the above enunciation of law, it is absolutely clear that legal representative Om Parkash could be entitled to file written statement by setting up all the pleas which would have been available to Mohant Garib Dass but he would not be entitled to raise any plea relating to his individual and personal defence like his rights under the will etc. unless he is granted leave by the Court and allowed to become party in his individual capacity under Order 1, Rule 10. It may also be pointed out that such an application ordinarily shall be allowed in order to avoid filing of a separate suit as has been pointed out by the Supreme Court in the case of Vidyawati (supra). 12. Before parting, I deem it appropriate to deal with the objection raised by the learned counsel for the plaintiff-respondent. The reliance of the learned counsel on the judgments of this Court, does not in any way lend support to his case that the defence of Mohant Garib Dass was rightly struck off or the Civil Judge has allowed the filing of the written statement or amended written statement to the legal representative without being conscious of the limitations of law. The ratio of both the judgments relied upon by the learned counsel is that it is not automatic or a necessary consequence that on the death of one of the parties, amended pleadings on his behalf should be permitted to be filed. There can hardly be any quarrel with this proposition. But in the present case, the facts are entirely different which would not admit application of the ratio of the judgments relied upon by the learned counsel because in these two cases, there is no dispute with regard to the provisions of Order 8, Rules 11 and 12. Therefore, the argument raised by the learned counsel for the plaintiff-respondent, cannot be accepted. 13. For the reasons recorded above, order dated 13.6.2001 is set aside and the order dated 30.8.2001 is also set aside to the extent it imposes a condition, incorporated in the order dated 13.6.2001. The defendant-petitoner shall be entitled to file the written statement by setting up all the pleas which were available to deceased Mohant Grib Dass. In case the defendant-petitioner intends to set up a plea with regard to his personal or individual defence, then he has to adopt the course laid down in Vidyawatis case (supra). The parties through their learned counsel are directed to appear before the trial Court on 9.5.2002. 14. Copy of the order be given Dasti. Petition dismissed.