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2008 DIGILAW 347 (JK)

Gh. Mohd. Dar v. Mehraj-ud-Din Dar

2008-09-19

MANSOOR AHMAD MIR

body2008
1. This revision petition is directed against the order dated 30th of June, 2008 passed by learned Sub-Judge (Chief Judicial Magistrate), Srinagar, in a suit titled as Mohammad Sultan Dar Vs. Habibullah Dar, dismissing the application moved by petitioner Ghulam Mohammad Dar in terms of Order 22 Rule 4(2) of Civil Procedure Code, for short CPC. 2. The short question involved in this revision petition is whether a legal representative can be permitted to put up separate defence independent to the defence taken by the defendant/ deceased? 3. It appears that a suit came to be filed by Mohammad Sultan Dar which is on the docket of the civil court right from 27th of August, 1994. It appears that suit is at its final stage and during the pendency of the suit and during the lifetime of father of the petitioner, petitioner moved an application for arraying him as party in the array of defendants in terms of Order 1 Rule 10 of CPC-- came to be dismissed vide order dated 26th of February, 2000. Thereafter, the defendant died and legal representative of Habibullah Dar came to be arrayed as parties. The petitioner also came to be brought on record as legal representative. He filed an application for permitting him to file additional written statement independently. Learned trial court after discussing the facts and law dismissed the application. 4. This revision petition came up for consideration today. I am of the considered view that the revision petition merits to be dismissed at this stage without issuing notice to other side in order to avoid further delay in the main suit which is almost 15 years old now, for the following reasons: 5. It is apt to reproduce Order 22 Rule 4 (2) of Civil Procedure Code for short CPC herein: (2) Any person so made a party may make any defendant appropriate to his character as legal representatives of the deceased defendant. 6. It mandates that any person who is brought as legal representative can make any defence appropriate to his character as legal representative of the deceased/defendant. It specifically provides that legal representative has to set up the same defence which is made by the deceased. 6. It mandates that any person who is brought as legal representative can make any defence appropriate to his character as legal representative of the deceased/defendant. It specifically provides that legal representative has to set up the same defence which is made by the deceased. No doubt a person who is brought as legal representative can make additional defence not in the capacity of legal representative but in his individual capacity provided he is arrayed as party/ defendant in individual capacity. He cannot file additional written statement in individual capacity without arraying him as party in the individual capacity. 7. My this view is fortified by the Apex Court judgment delivered in case titled J.C. Chaterjee & Ors. Vs. Shri Sri Kishan Tandon & anr., AIR 1972 SC 2526. It is apt to reproduce para-11 of the said judgment herein: 11. Under sub-clause (ii) of R.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 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 the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title. 8. Apex Court has laid down the same law in judgment titled as Bal Kishan Vs. Om Parkash and anr, reported as AIR 1986 SC 1952. 9. Apex Court again held in a case titled Vidyawati Vs. Man Mohan and others, reported as AIR 1995 SC 1653. It is apt to reproduce para-3 of the said judgment herein; 3. It is seen that the petitioners claim of right, title and interest entirely rest 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 conterminous with his demise. 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 conterminous with his demise. Whether the petitioner has independent right, title and interest dehors the claim of the first defendant is a matter to be gone into at a later proceedings. It is true that when the petitioner was impleaded as a party-defendant, all right under Order 22, Rule 4(2) and defences available to the deceased defendant become 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. 10. The petitioner has filed a suit which is still pending. He had also filed application for arraying as party which came to be dismissed vide order dated 26th day of February, 2000. The said order has attained finality. 11. In the given circumstances, the petitioner cannot be allowed to invoke this provision of law in order to get rid of the order dated 26th of February, 2000. He cannot be now permitted to seek permission to file additional defence. The legal representative(s) has/ have to step into the shoes of the deceased and cannot take other grounds which are not taken by the deceased. 12. The ratio of the Apex Court judgments (supra) is to prevent multiplicity of suits but in the instant case the petitioner has already filed a suit. 13. In the given circumstances of the case, the trial court has not committed any error. Accordingly, the impugned order is upheld and revision petition is dismissed. Registry to send down the copy of this order to the trial court.