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2016 DIGILAW 121 (ORI)

Niranjan Sahu v. Gauri Sahu

2016-02-15

A.K.RATH

body2016
JUDGMENT Dr.A.K.RATH, J. - Assailing the order dated 10.3.2010 passed by the learned Civil Judge (Sr. Division), Aska in C.S.No.26 of 2007, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial Court rejected the application of defendant no.2 (e) under Order 8 Rule 9 C.P.C to accept the additional written statement. 2. Bereft of unnecessary details, the short facts of the case are that opposite party no.1 as plaintiff filed C.S.No.26 of 2007 in the Court of the learned Civil Judge (Sr. Division), Aska impleading opposite party no.2 and Purushottam Sahu, the predecessor-in-interest of the petitioner and opposite parties 3 to 6 as defendants for declaration of title and permanent injunction. Pursuant to issuance of summons, defendant no.2 entered appearance and filed written statement supporting the stand of the petitioner. While the matter stood thus, he died on 21.3.2009. Thereafter, the petitioner and opposite parties 3 to 6 were substituted in his place. The petitioner, who is defendant no.2 (e), filed an application to accept the additional written statement contending, inter alia, that defendant no.2 is the father of the plaintiff. In collusion with defendant no.2, plaintiff had filed the suit to grab the joint family property standing in the name of defendant no.2 without making him as a party to the suit. In the said suit, defendant no.2 filed written statement supporting the stand of the plaintiff. After the death of defendant no.2, he was substituted and filed a separate written statement to safeguard the interest of the suit property. With this factual scenario, a prayer is made to accept the written statement. The plaintiff filed a counter to the same. The learned trial Court came to hold that in the written statement, original defendant no.2 supported the case of the plaintiff stating therein that the suit properties have been purchased by him through different sale deeds from different persons out of his own income and to press his legal necessity, he alienated the land to the plaintiff by means of a registered sale deed and thereafter delivered possession. But then defendant no.2 (e) in his written statement has taken a totally contrary plea and stated that the suit properties are not self-acquired properties of the deceased-defendant no.2. But then defendant no.2 (e) in his written statement has taken a totally contrary plea and stated that the suit properties are not self-acquired properties of the deceased-defendant no.2. The defendant no.2 (e) wants to file a separate written statement totally ignoring the written statement filed by the deceased defendant no.2, who is a complete departure from the written statement filed by the deceased-defendant no.2. Held so, the learned trial Court rejected the application. 3. Mr. Tripathy, learned counsel for the petitioner submitted that when the defendant died and in his place the present petitioner has been substituted, it is open to the petitioner to file a written statement and take any defence under Order 22 Rule 4 (2) of C.P.C. He further submitted that under Order 8 Rule 9 C.P.C. the defendant can also file additional written statement with leave of the Court. He relied on a decision of the apex Court in the case of Sumtibai and others Vrs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj) through Mankanwar (Smt) W/o. Parasmal Chordia (dead) and others, (2007) 10 SCC 82 as well as a decision of the Delhi High Court in the case of Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur and others, AIR 1992 Delhi 162. 4. Per contra, Mr.Samantray, learned counsel for the opposite parties 1, 3, 4, 5 and 6, contended that when the original defendant files written statement and dies, the legal heirs can also file written statement appropriate to his character as legal representative of the deceased-defendant. It is not permissible on the part of the substituted defendant to file written statement, which is contra distinction to the written statement filed by the original defendant. 5. To appreciate the rival contentions made at the Bar, it is apt to quote Order 8 Rule 9 C.P.C. and Order 22 Rule 4 (1) and (2) of C.P.C. “Order – VIII Written Statement, Set-off and Counter-claim Rules 1 to 8 xxx xxx xxx 9. 5. To appreciate the rival contentions made at the Bar, it is apt to quote Order 8 Rule 9 C.P.C. and Order 22 Rule 4 (1) and (2) of C.P.C. “Order – VIII Written Statement, Set-off and Counter-claim Rules 1 to 8 xxx xxx xxx 9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.” “Order-XXII Death, Marriage and Insolvency of parties Rules 1 to 3 xxx xxx xxx 4. Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of two or more defendants dies and the right to sue does not survive 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. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant”. 6. In Bal Kishan v. Om Parkash, AIR 1986 SC 1952 , the apex Court held as follows: “The sub-rule (2) of Rule 4 of Order 22 authorized 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.” 7. The same view was taken in the case of Jagadish Chander Chatterjee v. Shri Sri Kishan Tandon and another, AIR 1972 SC 2526 , wherein the apex Court in paragraph-11 of the report held as follows:- “11. 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 his character as legal representative of the deceased respondent. 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 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. In Vidyawati v. Man Mohan and others, AIR 1995 SC 1653 , the respondents-plaintiffs laid a suit in the Court of the Senior Subordinate Judge, Delhi for possession of the suit property against first defendant Brijmohan Kapoor, deceased husband of the petitioner-second defendant. Shri Man Mohan S/o. Jagmohan Kapoor had been impleaded to represent the estate of Brij Mohan Kapoor. When they sought to file additional written statement claiming title to and interest in the property under a will said to have been executed by Smt.Chamawati, the petition was dismissed by the trial Court holding that it was not open to the present applicant to assert her own individual or hostile title to the suit. It was further held that if a legal representative wants to raise any individual point which the deceased party could not have raised, he must get himself impleaded in his personal capacity or he must challenge the decree in a separate suit. Challenging the said order, revision was filed before the High Court, which was eventually dismissed. Relying on the earlier decisions in the cases of Bal Kishan (supra) and Jagadish Chander Chatterjee (supra), the apex Court held 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. 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 proceeding. 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 proceeding. 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. It was open to the petitioner to implead herself in her independent capacity under Order 1, Rule 10 or retain the right to file independent suit asserting her own right. 9. Salmond on Jurisprudence has succinctly stated the rights of a dead man vesting in his legal representative. (12th edition at page-120) : “The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.” 10. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.” 10. From the decisions cited (supra), it is pellucid that sub-rule (2) of Rule 4 of Order 22 authorizes the legal representative of a deceased defendant to file an additional written statement raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent. If the legal representative has an independent right, title and interest over the property, then he has to get himself impleaded in the suit as a party defendant and set up his own independent right, title and interest or challenge the decree that may be passed in the suit. He can not take contrary plea diametrically opposite to the deceased-defendant. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, it may be said that the legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. When a party to a suit dies and his legal representatives are substituted, the rights and liabilities of the original party have to be considered, but not those of legal representatives. It is not permissible on the part of the legal representative to make a prayer to ignore the written statement filed by the deceased-defendant and accept his written statement, which is a complete departure from the written statement filed by defendant no.2. 11. Reliance placed on Order 8 Rule 9 CPC is misplaced. Order 22 Rule 4 and Order 8 Rule 9 C.P.C. operate in different field. Order 22 Rule 4 (2) of C.P.C. provides any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant whereas Order 8 Rule 9 C.P.C. is a general provision with respect to the right of the defendant to file subsequent pleadings. Order 22 Rule 4 (2) of C.P.C. provides any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant whereas Order 8 Rule 9 C.P.C. is a general provision with respect to the right of the defendant to file subsequent pleadings. The said provision cannot be pressed into service that the person made as a party can make any defence or take a contrary stand to that of the deceased defendant. The plea of substituted legal representative is confined to the pleadings of the deceased-defendant. 12. On a bare perusal of the decision in the case of Sumtibai and others (supra), it is evident that the same does not run contrary to the earlier decisions of the apex Court. The apex Court in the said case held that in fact no useful purpose would be served by merely allowing the legal representatives to be impleaded but not allowing them to file an additional written statement. 13. In Satyabhama Choudhury v. Bansidhara Choudhury & others, 2012 (II) ILR-CUT – 189, opposite party no.1 as plaintiff instituted a suit for partition in the Court of learned Civil Judge (Senior Division) 1st Court, Cuttack. Defendant no.16 along with others filed written statement. While the matter stood thus, defendant no.16 died. Thereafter his legal heirs were substituted. The legal heirs of the deceased defendant no.16 filed a written statement and the same was accepted by the learned trial Court. Challenging the order of the learned trial Court in accepting the written statement of defendant no.16(a), a petition was filed before this Court. The learned Judge relying on Sumtibai (supra) held that this Court found that the written statement filed by defendant no.16(a) was in no way different from the statement which was earlier filed by the original deceased defendant. In the aforesaid premises, this Court held that a party has a right to take whatever plea he/she wants to take. Satyabhama Choudhury (supra) is not an authority for the proposition that the substituted defendant can file a written statement taking a total different stand to that of the deceased defendant. 14. It cannot be said that the view of the learned trial Court is perfunctory or flawed. The petition, sans merit, is dismissed. No costs. Petition dismissed.