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2007 DIGILAW 571 (PAT)

Om Prakash Verma v. Shila Shukla

2007-03-20

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Substituted defendant no.1 -petitioner, aggrieved by the order dated 24.5.2005 passed by the Subordinate Judge, Vll, Bhagalpur in T.S. No. 93 of 2001 allowing the application filed by the plaintiff not to accept the written statement filed by this defendant, has preferred this application. 2. Plaintiff filed the suit for decree of specific performance of contract impleading the petitioners mother and brother as defendants. Defendant No.1 died and the petitioner, who happens to be her son, was substituted in her place by order dated 14.12.2004. Thereafter, he appeared in the suit on 4.1.2005 and on several dates prayed for and granted time to file written statement. Ultimately, written statement was filed on 4.4.2005. Thereafter, the plaintiff filed application on 15.4.2005, inter alia, praying that the written statement filed by this defendant, be not accepted. 3. By reason of the impugned order, said prayer of the plaintiff has been accepted. 4. Mr. S. Kumar, learned Counsel appearing on behalf of the petitioner, submits that once the Court below had granted time to file written statement and the petitioner having done so, written statement filed by him was not fit to be rejected. In support of his submission, he has placed reliance on a judgment of this Court in the case of Shri Jai Shankar Mandal alias Jai Shankar Kumar Mandal and Another V/s. Sri Kailash Kumar Mandal alias Kailash Mandal, 2005(2) P.L.J.R. 179 and my attention has been drawn to paragraph no. 5 which reads as follows: "5. After hearing the learned counsel for the parties and after perusal of the materials on record including the impugned order, it is quite apparent that the trial of the suit has not started nor even the issues have been framed. It is also clear that the defendants have not violated any order of the court below and when time for filing written statement was extended by the learned court below on 8.4.2004, they filed their written statement on the date fixed i.e. 6.5.2004. It is also not in dispute that on 6.5.2004, the learned court below itself further extended the time till 25.5.2004, but the defendants without taking any advantage of the said extension filed their written statement on 6.5.2004 itself." 5. I do not find any substance in the submission of Mr. Kumar and the decision relied on is clearly distinguishable. 6. It is also not in dispute that on 6.5.2004, the learned court below itself further extended the time till 25.5.2004, but the defendants without taking any advantage of the said extension filed their written statement on 6.5.2004 itself." 5. I do not find any substance in the submission of Mr. Kumar and the decision relied on is clearly distinguishable. 6. In the present case, undisputedly, the petitioner has been substituted in place of defendant no. 1. The original defendant had filed the written statement. This Court in the case of Rameshray Mahto and Others V/s. Amiri Mahto and Another 2003(3) PLJR 467 has clearly held that in case of substitution under Order 22 Rule 4 of the Code of Civil Procedure, the heirs enter into the shoes of the deceased with all rights and liabilities and are precluded from presenting a case inconsistent with the fact set up by the deceased. This would be evident from paragraph no. 9 of the said judgment, which reads as follows: "9. Learned Counsel for the plaintiff (respondent No. 1 herein) rightly submits that the scope of Order XXII, Rule 4, CPC on the one hand, and that of Order 1, Rule 10 CPC on the other, are quite different. In the case of the former. the heirs enter into the shoes of the deceased with all rights and liabilities and are precluded from presenting a case inconsistent with the one set up by the deceased on the other hand. Order 1, Rule 10, CPC is available to a party in a situation where the party or parties are trying to enter appearance for the first time and entirely on their own, and is free to take any stand he wishes. The provisions of Order XXII, CPC apply in a situation caused by the death of a party already on record and is bound by the laws of limitation, whereas in the case of the latter, the applicant may not be bound by any such restriction. Lastly, law is well settled that applicability of general provisions are excluded in situations where specific provisions are in force. In the present case, the provisions of Order XXII are applicable to the exclusion of Order 1, Rule 10 because the situation has arisen on account of the death of a party. Lastly, law is well settled that applicability of general provisions are excluded in situations where specific provisions are in force. In the present case, the provisions of Order XXII are applicable to the exclusion of Order 1, Rule 10 because the situation has arisen on account of the death of a party. A thing which cannot be done directly, cannot be permitted to be done indirectly." (underlining mine) 7. In view of aforesaid, in my opinion, the Court below did not err in accepting the application field by the plaintiff. 8. In the case of Jai Shankar Mandal (supra), defendant was given time to file the written statement and after it was filed, objection was raised. Here in the present case, the right of the substituted defendant to file the written statement is under consideration and hence this decision is clearly distinguishable. 9. In the result, I do not find any merit in this application and it is dismissed accordingly.