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2018 DIGILAW 1068 (RAJ)

Rukma Devi Mali v. Mangi Bai Mali

2018-04-24

ALOK SHARMA

body2018
JUDGMENT : Alok Sharma, J. Heard the counsel for the petitioner-defendants (hereinafter 'defendants') and perused the impugned order dated 22.02.2018 passed by the Additional District and Sessions Judge No.2, Beawar whereby it has been held that the additional written statement at the instance of the legal representatives of the original defendant Kana alias Kanhaiya Lal albeit taken on record without the leave of the court be excluded from the pleadings in the suit and be kept in Part-D of the court file. The trial court further held that consequently neither the defendant's application under Order 6, Rule 17 CPC read with section 151 of CPC to amend the said additional written statement first filed without the court's leave nor their application under Order 14, Rule 5 CPC for framing of additional issues based on the amended written statement needed address and hence were both infructuous. The defendants are aggrieved and hence this petition. 2. The facts of the case are that a suit for cancellation of the release deed dated 20.08.2010 was filed by respondent-plaintiff no.1 Mangi Bai. One Kana alias Kanhaiya Lal was impleaded as a defendant along with others and summons of the suit being served inter alia on Kanhaiya Lal also, he filed his written statement on 30.04.2013. Issues based thereon were framed on 04.06.2016. Following the death of Kanhaiya Lal, his legal representatives were taken on record by resort to Order 22, Rule 4 CPC. They then appear to have filed an additional written statement without the leave of the court. The trial court then noticing the error in taking on record the additional written statement of the legal representatives of Kanhaiya Lal has in the impugned order held that the code of civil procedure does not visualize such multiplicity of written statements at the instance of a defendant/his legal representative on record following his death and it was therefore liable to be struck off its record. 3. Mr. J.P. Gupta, counsel for the defendant submitted that the written statement of the legal representatives of Kanhaiya Lal was filed on 16.04.2015 without any objection either by the Court or the plaintiffs. It therefore could not have been directed subsequently to be taken off the record of the suit and kept in Part-D of the court file. 3. Mr. J.P. Gupta, counsel for the defendant submitted that the written statement of the legal representatives of Kanhaiya Lal was filed on 16.04.2015 without any objection either by the Court or the plaintiffs. It therefore could not have been directed subsequently to be taken off the record of the suit and kept in Part-D of the court file. It was submitted that even otherwise as the legal representatives of the deceased defendants Kanhaiya Lal the defendants were entitled to take all defences in consonance with their status in the suit. Reliance was placed on the judgment of the Apex Court in the case of Abdul Razak (D) through LRs. And Others v. Mangesh Rajaram Wagle and Others [ (2010) 2 SCC 432 ]. 4. Mr.Harshad Kapoor, counsel for the respondent-plaintiff (hereinafter 'plaintiff') submitted that at the time of filing of the additional written statement by the legal representatives of the Kanhaiya Lal, the written statement of the deceased Kanhaiya Lal already having been filed in Court and on its record, leave of the Trial Court was a pre-condition. The code of civil procedure does not visualize multiple written statements at the instance of a defendant-not even by his legal representatives. Hence the Court's leave for additional written statement was necessary. And such leave could be granted only for good reason to bring a defence on record if such defence had not been taken by the original defendant in issue before his death. It was submitted that the impugned order has been therefore correctly passed by the trial court. It was submitted that if at all the LR's of the defendant sought to add anything to the original defendant's defence in the written statement it could only be by moving an application for amendment under Order 6, Rule 17 CPC and depending upon the merits of such an application the trial court would have taken a view. That was not done. It was submitted that at the stage of filing of the additional written statement objection had been noted thereon by the plaintiff in the first instance itself. The judgment of the Apex Court in Abdul Razak (D) through LRs. & Others (supra) is therefore not apposite. 5. Heard. Considered. 6. The deceased Kanhaiya Lal as the defendant in the suit for cancellation and relinquishment deed had filed his written statement prior to his death. The judgment of the Apex Court in Abdul Razak (D) through LRs. & Others (supra) is therefore not apposite. 5. Heard. Considered. 6. The deceased Kanhaiya Lal as the defendant in the suit for cancellation and relinquishment deed had filed his written statement prior to his death. I am of the considered view that in the circumstances no additional written statement at the instance of his legal representatives subsequent to his death could have been filed. CPC does not visualize such manner of pleadings. Mr.Harshad Kapoor is correct in so stating. If at all anything to the written statement on record was to be added it could be so done only by resort to Order 6, Rule 17 CPC. On such an application the trial court would have taken a view on the application's merit. 7. In the instant case, the trial court has further noted that the issues for trial in the suit were framed on the basis of the written statement of the deceased Kanhaiya Lal. Reliance by Mr.J.P. Gupta on Abdul Razak (D) through LR's & Others (supra) is of no avail. In that case objection to the additional written statement was belated taken. Not so in the instant case where objection of the plaintiff were noted on the additional written statement itself as stated by Mr. Harshad Kapoor and not denied by Mr. J.P. Gupta. I am of the considered view that in the facts of the case the order dated 22.02.2018 passed by the trial court cannot be held to either suffer from capriciousness or vitiated by any patent illegality. There is no force in the petition. Dismissed.