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2017 DIGILAW 446 (ORI)

Swadhinlata Das v. Lingaraj Swain

2017-04-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 13.02.2015 passed by the learned Civil Judge (Jr. Divn.), 2nd Court, Cuttack in C.S. No.178 of 2007, whereby and whereunder learned trial court rejected the application of the defendant no.7 to grant liberty to file written statement. 2. The opposite party no.1 along with the predecessors-in-interest of opposite party nos.2 and 3 instituted the suit for declaration that they are the absolute owner of the suit schedule property and the defendant nos.1, 7 to 9 have no semblance right, title and interest over the same and declaration that the RSD dated 28.11.1986 executed by Prabhat Kumar Mohapatra in favour of defendant nos.1, 7 to 8 as well the order dated 30.8.1989 passed in Mutation Case No.96 of 1989 are illegal, invalid and void impleading the petitioner and opposite party nos.4 to 6 as defendants. The petitioner is the defendant no.7. 3. Pursuant to issuance of summons, the defendant nos.1, 8 and 9 entered appearance and filed their respective written statements denying the assertions made in the plaint. Issues were framed. Evidence from the side of the plaintiffs was closed. After closure of evidence, defendant no.1 died. The plaintiffs filed an application to delete the name of defendant no.1 since other legal heirs, namely, wife and son, defendant nos.7 and 8 are already on record. The defendant no.7 filed objection to the said petition. She had also filed a petition to recall the order dated 09.02.1996 setting her ex-parte and to allow her to file written statement. The plaintiffs filed objection to the said petition. Learned trial court deleted the name of the defendant no.1 from the cause title of the plaint. With regard to the petition filed by the defendant no.7, it held that though the defendant no.7 was set ex-parte on 09.02.1996, despite the said order she appeared through her counsel and filed written statement. The same was accepted by the court without any objection. Her counsel has also taken steps on her behalf on each date. In view of the subsequent events, the order setting her ex-parte no more stands. It further held that the evidence of the plaintiffs is closed and as such granting liberty to the defendant no.7 to file written statement does not arise. Held so, learned trial court rejected the application. 4. Heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. It further held that the evidence of the plaintiffs is closed and as such granting liberty to the defendant no.7 to file written statement does not arise. Held so, learned trial court rejected the application. 4. Heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. K.S. Sahoo, learned counsel on behalf of Mr. A.R. Dash, learned counsel for the opposite party nos.1, 2(a), 2(b) and 3(a). 5. Right of the legal representatives of the deceased to file written statement after the application for substitution is allowed has been succinctly stated by this Court in the case of Niranjan Sahu vs. Gauri Sahu and others, 2016 (Supp.II) OLR-245. This Court held thus: “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. (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 Jagdish 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. 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. Champawati, 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. 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. Champawati, 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 proceedings. 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. (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. 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. 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.” 6. In the instant case, the defendant nos.1, 7 to 9 filed their respective written statements. After the evidence of the defendant no.1 was closed, he died. The plaintiffs filed petition to delete his name since his wife, defendant no.7 and son, defendant no.8, are already on record. It is not permissible on the part of the defendant no.7 to ignore the written statement filed by her and grant liberty to file another written statement, when she as well as the defendant no.1 filed their respective written statement. 7. There being no illegality or infirmity in the order dated 13.02.2015 passed by the learned Civil Judge (Jr. Divn.), 2nd Court, Cuttack in C.S. No.178 of 2007, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs.