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2014 DIGILAW 2057 (RAJ)

Sulkhan Singh v. Jagmohan Singh

2014-12-09

ARUN BHANSALI

body2014
Hon'ble BHANSALI, J.—This writ petition is directed against the order dated 18.9.2014 passed by Special Judge (N.D.P.S. Cases), Hanumangarh, whereby application under Section 151 CPC filed by the petitioners has been dismissed. 2. The facts in brief may be noticed thus : respondents Jagmohan Singh and Sukhdev Singh filed a suit on 24.7.1996 seeking cancellation of will dated 8.10.1974 against Bhupendra Singh, Gurvendra Singh, Kaur Singh and Karnail Singh. The will was executed by Late Jangeer Singh in favour of Kaur Singh and Karnail Singh. 3. The trial court by order dated 7.1.1998 directed to proceed ex-parte against defendant No.4 Karnail Singh and the suit proceeded. 4. On 17.3.2012, Karnail Singh filed application under Order IX, Rule 7 CPC for setting ex-parte order dated 7.1.1998. 5. The application was opposed by the plaintiffs Jagmohan Singh and Sukhdev Singh. However, during the pendency of the said application, Karnail Singh died on 17.4.2012 and by order dated 24.5.2014, the petitioners Sulkhan Singh and others were impleaded as legal representatives of Karnail Singh on an application filed under Order XXII, Rule 4 CPC by the plaintiffs, whereafter the application filed by Late Shri Karnail Singh under Order IX, Rule 7 CPC was argued and the trial court by its order dated 2.9.2014 dismissed the application under Order IX, Rule 7 CPC. 6. Whereafter, the petitioners -legal representatives of Karnail Singh filed an application under Section 151 CPC contending that the applicants have been impleaded as defendants by order of the Court and therefore, they are entitled to file written statement independently, which is their legal right and therefore, they may be permitted to file written statement. 7. The application was opposed by the plaintiffs inter-alia on the ground that with the dismissal of the application under Order IX, Rule 7 CPC, the applicants being legal representatives of Karnail Singh have lost their right to file the written statement. 8. The defendant No.3 Kaur Singh also filed reply to the application and opposed the prayer. 9. The trial court after hearing the parties came to the conclusion that the applicants have got no independent / individual right, if they had any right, they could implead themselves as party in the suit or set up their own title in the suit property by filing a separate suit and they have no right to file additional written statement and dismissed the application. 10. 10. Feeling aggrieved, the petitioners have filed the present composite writ petition questioning the validity of order dated 2.9.2014, whereby the application under Order IX, Rule 7 CPC was rejected by the trial court and the order dated 18.9.2014, whereby the application filed by the petitioners under Sec. 151 CPC seeking opportunity to file written statement has been rejected. 11. It is submitted by learned counsel for the petitioners that the trial court fell in error in rejecting the application under Section 151 CPC, inasmuch as, the petitioners were impleaded as party to the suit and on account of their impleadment, they have got a right to file the written statement. 12. It was further contended that merely because no written statement was filed by their father Karnail Singh and application filed by him under Order IX, Rule 7 CPC was rejected by the trial court, the same cannot affect the right of the petitioners, who have got an individual / independent right to file written statement as coparceners. It was submitted that the trial court was bound to give permission to file written statement even for the purpose of compliance of principles of natural justice. 13. Reliance was placed on J.C. Chatterjee & Ors. vs. Shri Sri Kishan Tandon & Anr. : AIR 1972 SC 2526 ; Sumtibai & Ors. vs. Paras Finance Co. : 2007 DNJ (SC) 1019. 14. In regard to the order dated 2.9.2012 dismissing the application under Order IX, Rule 7 CPC, it was submitted that sufficient cause was made out by Late Karnail Singh for not appearing in the suit earlier as he was mislead by Kaur Singh and therefore, the trial court was bound to set-aside the ex-parte proceedings against Late Karnail Singh and grant opportunity to the petitioners to file written statement and therefore, in any case the order dated 2.9.2014 deserves to be quashed and set-aside. 15. Learned counsel for the respondents No.3, 4 & 5 vehemently opposed the submissions made by learned counsel for the petitioners. 16. It was contended that once the application under Order IX, Rule 7 CPC filed by Karnail Singh was dismissed by the trial court, the petitioners, who were impleaded as legal representatives of Late Karnail Singh cannot seek independent right to file written statement. 17. 16. It was contended that once the application under Order IX, Rule 7 CPC filed by Karnail Singh was dismissed by the trial court, the petitioners, who were impleaded as legal representatives of Late Karnail Singh cannot seek independent right to file written statement. 17. It was further contended that the petitioners were impleaded as legal representatives of Karnail Singh and they at no stage of the suit claimed independent / individual rights in the suit and therefore, cannot claim any right independent of their status as legal representatives of Late Karnail Singh. 18. Reliance was placed on the judgment of this Court in Ramgopal & Anr. vs. Khiv Raj & Ors. : AIR 1998 Raj. 98 . 19. In reply to the submissions made on the application filed by Karnail Singh under Order IX, Rule 7 CPC, it was submitted that the averments made in the application were on its face unbelievable, the application was filed after 14 years of order passed by the trial court setting the suit ex-parte against Karnail Singh and the application was filed at the stage of final hearing and as such, the trial court was justified in dismissing the application. 20. I have considered the rival submissions. 21. As noticed here-in-before, the suit was ordered to be proceeded ex-parte against Karnail Singh on 7.1.1998, whereafter application for setting aside the ex-parte order was filed by Karnail Singh on 17.03.2012 and during the pendency of the application Karnail Singh died on 17.4.2012. Whereafter, the plaintiffs filed application under Order XXII, Rule 4 CPC, which was allowed by the trial court on 24.5.2014. 22. After impleadment of the petitioners under Order XXII, Rule 4 CPC, the right which the petitioners got was to make any defence appropriate to their character as legal representatives of deceased defendant Karnail Singh under the provisions of Order XXII, Rule 4(2) CPC, the petitioners exercised that right by prosecuting the application filed by Late Karnail Singh under Order IX, Rule 7 CPC, which came to be rejected by order dated 2.9.2014 by the trial court. Whereafter, the application seeking an independent right to file written statement was filed. 23. Whereafter, the application seeking an independent right to file written statement was filed. 23. As noticed here-in-before, the impleadment of the petitioners was as legal representatives and under the express provisions of Order XXII, Rule 4(2) CPC a legal representative can only make defence as appropriate to his character as legal representative and cannot be permitted to either take a plea contrary to what had already been taken by the deceased and / or to set up their own individual right to contest the suit. 24. Once the right to file written statement of Karnail Singh came to an end with the passing of the order to proceed exparte against him in the year 1998 and thereafter by dismissal of application filed by him in the year 2012 by order dated 2.9.2014 whatever right Karnail Singh had to file his written statement came to an end and therefore, the petitioners – as legal representatives of Late Karnail Singh cannot seek a better right to file written statement, especially in view of the fact that the application under Order IX, Rule 7 CPC was rejected, after they were impleaded as legal representatives, in their presence. 25. Permitting the petitioners to file written statement after Karnail Singh lost the right / opportunity to file his written statement would be contrary to and against the express provisions of Order XXII, Rule 4(2) CPC. 26. This Court in the case of Ramgopal (supra) in almost similarly circumstances held as under :- “7. In my opinion, the contention of the learned counsel appearing for the petitioners is devoid of any force. It is settled law that the legal representatives are stepped into the shoes of the deceased-plaintiff or defendant, as the case may be, and they must adopt the position occupied by his predecessor plaintiff or defendant. The legal representatives, therefore, must proceed with the litigation from the stage where death of defendant or plaintiff had taken place. They are legally bound by the pleading of his predecessors-in-interest in whose place they have been substituted. Hence, the legal representatives substituted under O. 22, R.4, C.P.C. Cannot set up a new case. The petitioners are bound by the proceedings taken so far against the deceaseddefendant. They cannot be allowed to file the written statement, the right of which was closed as soon as the ex-parte order was passed against the deceaseddefendant-Govind Ram.” 27. Hence, the legal representatives substituted under O. 22, R.4, C.P.C. Cannot set up a new case. The petitioners are bound by the proceedings taken so far against the deceaseddefendant. They cannot be allowed to file the written statement, the right of which was closed as soon as the ex-parte order was passed against the deceaseddefendant-Govind Ram.” 27. In the case of J.C. Chetterjee (supra) cited by learned counsel for the petitioners, the Hon'ble Supreme Court held and observed as under:- “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.” 28. The Hon'ble Supreme Court also in view of the provisions of Order XXII, Rule 4(2) CPC held that 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. The observations that the legal representatives are not prevented from setting up their own independent title by the Hon'ble Court has been circumscribed by the observations that the impleadment has to be not as merely legal representatives but also in their personal capacity. 29. Admittedly, the application in the present case has been under Order XXII, Rule 4 CPC by the plaintiffs and the petitioners at no stage sought impleadment in their independent capacity and therefore, the judgment in the case of J.C. Chatterjee (supra) does not aid the case of the petitioners. 30. In the case of Sumatibai (supra), the legal representatives being conscious of limitations as their status as legal representatives, filed applica-tion under Order XXII, Rule 4(2) CPC read with Order I, Rule 10 CPC seeking permission to file additional written statement. 30. In the case of Sumatibai (supra), the legal representatives being conscious of limitations as their status as legal representatives, filed applica-tion under Order XXII, Rule 4(2) CPC read with Order I, Rule 10 CPC seeking permission to file additional written statement. The facts of the case reveal that the deceased himself had filed a written statement and was not being proceeded ex-parte, the application filed by the legal representatives was under Order I, Rule 10 CPC, and in those circumstances, the Hon'ble Supreme Court permitted the appellants therein to file additional written statement. 31. The fact situation and the observations made by the Hon'ble Supreme Court in the context of that case does not apply to the present case as in the present case the deceased had already lost his right to file written statement and the legal representatives did not take any step under Order I, Rule 10 CPC as in the case of Sumatibai and as such, the said judgment is clearly distinguishable. 32. Consequently, in view of the above discussion, the order dated 18.9.2014 declining permission to file written statement passed by the trial court cannot be faulted. 33. So far as challenge to order dated 2.9.2014, dismissing the application filed by deceased Karnail Singh under Order IX, Rule 7 CPC is concerned, in the application the deceased took a plea that on summons of the suit being served, he was told by his brother Kaur Singh that he has engaged counsel Shri Mahendra Singh Sandhu and he handed-over several blank papers after putting signatures on them and was told by his brother that now he need not attend the courts. Few days back i.e. in the year 2012 when he sought information from his brother Kaur Singh, he was told that the suit seeking cancellation of will was going to be rejected, whereas he (deceased) wanted the will to be cancelled. When he met the counsel and was told that the counsel was not representing the deceased, the application was filed. 34. From the plea raised by the deceased Kaur Singh, it is apparent that he was served with the summons and had not appeared before the trial court and the proceeding qua him were set ex-parte. When he met the counsel and was told that the counsel was not representing the deceased, the application was filed. 34. From the plea raised by the deceased Kaur Singh, it is apparent that he was served with the summons and had not appeared before the trial court and the proceeding qua him were set ex-parte. The plea raised by him regarding being mislead by Kaur Singh for over 14 years does not appear to have any substance and the application having been filed after 14 years at the stage of final hearing, was rightly rejected by the trial court. 35. The order impugned passed by the trial court on 2.9.2014 also does not call for any interference in extra-ordinary jurisdiction under Articles 226 & 227 of the Constitution of India. 36 Consequently, there is no substance in the writ petition, the same is, therefore, dismissed.