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2013 DIGILAW 1237 (PAT)

Ambuj Tiwary v. Mukta Mani Devi

2013-10-09

CHAKRADHARI SHARAN SINGH

body2013
ORDER An order dated 04.06.2013 passed in T.S. No. 6/80 pending in the Court of learned Sub-Judge, IV, Chapra whereby petitioner’s application for allowing her to file written statement; is under challenge in the present application under Article 227 of the Constitution of India. The petitioner has been substituted in place of original defendant No. 1 on 21.02.2013 after his death on 21.01.2006. 2. I have heard learned counsel for the petitioner and the contesting Respondents in detail. 3. The facts for adjudication of the present case are not in dispute. Respondent No. 1 is the plaintiff before the Court below. Suit was filed in the year 1980 impleading petitioner’s father, Nand Kishore and her brothers Shiv Shankar, Ram Shankar and sister Shiv Kumari, Shiv Kumari’s husband Umapati Patthak as defendants No. 1, 2, 3, 4 and 5 respectively. After service of summons, the defendants entered appearance and filed Vakalatnama. The suit remained pending for several years in the view of the provision as contained in Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Nand Kishore, defendant No. 1 did not filed any written statement and died on 26.01.2006. A petition for substituting the legal heirs of defendant No. 1 was filed, thereafter, on 26.12.2006. The substitution petition remained pending for several years. During the pendency of substitution petitions dated 26.12.2006, defendant No. 1, 2, 3, 4 and 5 filed their written statement on 7.03.2011 which was accepted vide an order dated 05.07.2011. Till then issues have not been framed. 4. Without any order on application for substitution dated 26.12.2006, the Court below framed the issues on the basis of available pleadings on 04.08.2012. Subsequently, vide order dated 21.02.2013, the substitution petition was allowed and the petitioner came to be dismissed substituted in place of Nand Kishore as a defendant. On 09.04.2013, notice was reported to have been validly served upon the petitioner. After service of notice, the petitioner entered appearance on 04.06.2013 praying for time for filing written statement. The said application has been rejected on the same day by the Court by the impugned order. This is to be noted that in the meanwhile the evidence started on 22.05.2013. 5. After service of notice, the petitioner entered appearance on 04.06.2013 praying for time for filing written statement. The said application has been rejected on the same day by the Court by the impugned order. This is to be noted that in the meanwhile the evidence started on 22.05.2013. 5. Learned counsel for the petitioner has submitted that Court below should have allowed the petition to file her written statement for the reason that she was substituted as defendant on 21.02.2013 and other defendants were allowed to file the written statement on 17.03.2011. Though the suit was filed in the year 1980, the fact remains that the substitution petition remained pending since 26.12.2006, on which the order was passed on 21.02.2013 by which the substitution petition was allowed with a cost of rupees fifteen hundred and the petitioner was substituted in place of defendant No. 1 as his legal heir. 6. Learned counsel for the contesting Respondent has contended that the Court below rightly rejected the petitioner’s application seeking permission to file written statement as no written statement was filed by the defendant No. 1, her father and, therefore, after her substitution, she could not be allowed to file a written statement after thirty three years of institution of the suit. He submits that original defendant No. 1 had selected not to file written statement and the present petitioner, after having stepped into the shoes of her father could not be allowed to take any stand inconsistent with the one taken by her father. 7. The legal proposition that a substituted heir steps into the shoes of the original party and he or she cannot take a stand which is inconsistent with or contrary to the one taken by the original plaintiff or defendant, is well established principle. However, in the present case, the suit was filed in the year 1982. The suit did not proceed because of the provisions as contained in Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and even defendants No. 2, 3, 4 and 5, who are sons, daughter and son-in-law of defendant No. 1 and were party to the suit filed their written statement on 07.03.2011. Original Defendant died on 26.01.2006. Original Defendant died on 26.01.2006. The petitioner ought to have been substituted after death of defendant No.1 but, in spite of there being an application of substitution filed on 26.12.2006, she was substituted by an order dated 21.02.2013. In such circumstance, reasoning that substituted defendant should not be allowed to file written statement as original defendant had not filed written statement shall have no application. Evidently, the suit could not proceed because of Section 4(C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and none of the defendants as indicated above had filed their written statement before the death of original defendant. 8. In view of the above, the petitioner could not have been refused permission to file written statement by the impugned order. Accordingly, the impugned order dated 04.06.2013 passed in Title Suit No. 6/80 passed by learned Sub-Judge IV, Chapra is set aside. 9. The Court below is directed to allow the petitioner to file her written statement within a reasonable time. If the petitioner fails to file written statement within the time to be prescribed by the Court below, she will not be granted any further time for the said purpose. 10. This application is accordingly allowed.