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2018 DIGILAW 2083 (RAJ)

Himmat Singh Rajput v. Suraj Kanwar

2018-10-09

DINESH MEHTA

body2018
JUDGMENT : DINESH MEHTA, J. 1. The petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, laying challenge to an order dated 14.8.2018, passed by the learned Addl. District Judge, Sujangarh, Churu (hereinafter referred to as ‘the appellate court or court below’), whereby his application seeking amendment in the written statement came to be rejected. 2. The facts within the precincts of the question involved in this case are that the plaintiff Suraj Kanwar filed a suit for permanent and temporary injunction seeking an injunction to the effect that defendant No. 2 Laxman Singh be restrained from interfering and stopping the employees of defendant No. 1, when they provide electricity connection to her at the property, which has devolved in her by virtue of a Will dated 20.2.1991, executed by her father Late Shri Hukam Singh. The aforesaid suit was essentially instituted for taking electricity connection but the defendant No. 2 Laxman Singh (when he was alive) was arrayed as a defendant apprehending his resistance in installation of electricity connection and keeping in view the litigation between the plaintiff and defendant No. 2, said defendant filed a written statement and stated that plaintiff was not the sole child and he was also son of said Hukam Singh. It was also averred that the subject Will was forged and void for which he has already filed a suit being Suit No. 117/2007 (old No. 271/1992). The defendant No. 2 opposed grant of injunction as prayed while maintaining that the plaintiff cannot take electricity connection in the disputed premises described in para No. 1 of the plaint. Though defendant No. 2 raised all possible objection/defence, however, did not dispute the title of late Hukam Singh. 3. The trial court rejected the suit filed by the plaintiff Suraj Kanwar vide its order dated 14.10.2014, inter alia finding it to be prohibited u/Sec. 145 of the Electricity Act, 2003 and the plaint filed by the plaintiff came to be returned as per the provisions of Order VII Rule 11 of Civil Procedure Code, 1908. 4. Against aforesaid order dated 4.10.2014 passed by the trial court, the plaintiff preferred an appeal before the appellate court. 4. Against aforesaid order dated 4.10.2014 passed by the trial court, the plaintiff preferred an appeal before the appellate court. During the pendency of the appeal, the defendant No. 2 Laxman Singh passed away on 24.1.2015, for which Himmat Singh-his son, Pan Kanwar-his daughter and Bindu Kanwar-his wife sought their substitution in his place by way of filing an application under Order XXII Rule 2 and 4 of the Code of Civil Procedure. Said application came to be allowed by the appellate court on 21.2.2018 and they were all taken on record. Subsequent thereto, Himmat Singh (defendant No. 2/1), the present petitioner filed an application dated 27.3.2018 and sought amendment in the written statement filed by his father, invoking the provisions of Order VI Rule 17 of the Code of Civil Procedure. By way of the said application, the petitioner sought insertion of Paras Nos. 17 to 19 in the written statement, whereby asserting that Late Shri Hukam Singh, father of the plaintiff Suraj Kanwar, was not a title holder of the contentious property and he was simply its user and occupier. It was further contended that in absence of title, Hukam Singh could not execute the contentious Will qua the property. It has also been contended that Gram Panchayat Palasi has issued a Patta regarding the disputed property in the name of Laxman Singh and Himmat Singh and as such, Late Shri Laxman Singh and the defendant No. 2/1 Himmat Singh were owner of the property and not Late Hukam Singh. 5. The plaintiff filed a reply to the said application and opposed the amendment, inter alia, contending that the newly substituted defendant has no right to deny the admission made by his predecessor Laxman Singh. It was also stated that the amendment sought by Himmat Singh would change the nature and frame of the written statement. 6. The aforesaid application seeking amendment came to be rejected by the appellate court vide its order dated 14.8.2018. The court below rejected the application, essentially feeling that the subject application seeking amendment in the written statement at the appellate stage was not maintainable 7. Oppugning the order dated 14.8.2018 passed by the court below Mr. Kotwani contended that the learned court below has committed an apparent error of law in rejecting his application. The court below rejected the application, essentially feeling that the subject application seeking amendment in the written statement at the appellate stage was not maintainable 7. Oppugning the order dated 14.8.2018 passed by the court below Mr. Kotwani contended that the learned court below has committed an apparent error of law in rejecting his application. He submitted that the order impugned does not conform to basic tenet of adjudicatory process, as the court below has neither delved upon the contentions raised nor has it assigned any reason for its conclusion. 8. Notwithstanding the above contentions, Mr. Kotwani urged that the petitioner's application deserved acceptance in light of judgment of Hon'ble Supreme Court rendered in case of Sumtibai v. Paras Finance Company reported in (2007) 10 SCC 82 and coordinate Bench decision dated 9.4.2018 passed in SB Civil Writ Petition No. 4495/2018, following the said judgment. 9. Heard learned counsel for the petitioner and perused the material available on record including the order impugned. 10. A bare look at the order under challenge dated 14.8.2018, reveals that the same is an unreasoned order. The appellate court has simply observed the empty formality of noticing the contentions of the parties and rejected the application mechanically with observation that the amendment application does not appear to be maintainable in the present appeal, which has been filed against an order whereby the plaint had been returned being barred by law, as per provisions of Section 145 of the Electricity Act, 2003. True it is that the learned appellate Court has reminded itself of the provisions of Order VI Rule 17 of the Code and its scope, but then, it has neither dealt with the arguments advanced by the rival parties nor has it given any reasons for rejecting the application. As a matter of fact, the matter deserves to be remanded to the court below, for denovo decision. 11. However, this Court proceeded to exercise its supervisory jurisdiction to examine the application on its own merit, at the request of Mr. Kotwani, who argued that his application was worthy of acceptance. 12. Before adverting to the merit of the application, we have to first examine as to whether a legal representative, who has been substituted in place of the original defendant can seek amendment in the written statement, which has been filed by his predecessor. Kotwani, who argued that his application was worthy of acceptance. 12. Before adverting to the merit of the application, we have to first examine as to whether a legal representative, who has been substituted in place of the original defendant can seek amendment in the written statement, which has been filed by his predecessor. The petitioner-defendant No. 2/1 was substituted as legal representative of late Shri Laxman Singh pursuant to an application under order XXII Rule 2 and 4 of the Civil Procedure Code. Sub-rule (2) of Rule 4 of order XXII permits a legal representative of a deceased defendant to make any defence appropriate to his character as legal representative. It will be profitable to recollect the language of sub-rule (2) of Rule 4 of Order XXII which reads thus: “Any person so made a party may make any defence appropriate to his character as legal representative of the deceased.” 13. In considered opinion of this court, Sub-rule (2) reproduced above empowers the legal representative to take a defence, but such defence should be appropriate to his character or status as legal representative of such deceased defendant. The expression used in sub-rule (2) is restrictive and in considered view of this Court a substituted legal representative is entitled to take additional defence only to the extent of his character or status as legal representative of the deceased defendant. In other words, a substituted legal representative can take additional defence, which is available/permissible to him or which has accrued to him after the death of the original defendant and/or the new facts/development which emerge as a result of his character or status as such legal representative. 14. Such restrictive provision cannot be used by a substituted legal representative to entirely disown the written statement filed by his predecessor or to upturn the earlier stand by bringing in entirely a new case. 15. The judgment of Sumtibai (supra) relied upon by Mr. Kotwani is of little avail to him, inasmuch as the facts of the said case are quite different. In the said case, the legal heirs of Kapoor Chand, after being substituted were permitted to file additional written statement by the Hon'ble Supreme Court, as the sons of Kapoor Chand were co-owner of the property in dispute. A careful reading of the facts stated and discussion made in para Nos. In the said case, the legal heirs of Kapoor Chand, after being substituted were permitted to file additional written statement by the Hon'ble Supreme Court, as the sons of Kapoor Chand were co-owner of the property in dispute. A careful reading of the facts stated and discussion made in para Nos. 7 and 8 of the judgment reveals that taking cognizance of the fact that legal representatives of Kapoor Chand, were joint owners of the disputed property, Hon'ble the Apex Court accepted their application under Order I Rule 10 of the Civil Procedure Code and conferred upon them, a right to file additional written statement. 16. In the present case, the petitioner Himmat Singh, a legal representative, having stepped into the shoes of Laxman Singh, can neither expand the scope of the written statement nor can he be permitted to infuse new facts. These facts, if at all were correct and present, ought to have been in the knowledge of said Laxman Singh. Himmat Singh did not have any right independent of Laxman Singh. In this view of the matter, the judgment relied upon by the petitioner, is clearly distinguishable on the facts. 17. Adverting to the second judgment relied upon by Mr. Kotwani, i.e, the judgment dated 9.4.2018 rendered in SBCWP No. 4495/2018, suffice it to mention that the facts of the said case also are utterly different. It will not be out of place to reproduce the facts narrated in para No. 2 of the judgment, which reads thus: “2. The plaintiffs-respondents No. 1 to 3 filed a civil suit for permanent injunction and declaration of trust deed dated 28.11.1998 as null and void and ineffective, as far as the plaintiff-respondents are concerned. During the pendency of the suit, defendant-Lichhman Singh expired, and accordingly, his Legal Representatives i.e. the present petitioners were taken on record. After being impleaded, the petitioners filed a written statement, and thereafter, upon an application being moved by the plaintiffs/respondents to keep the said written statement in Part ‘D’, the learned court below vide order dated 07.03.2018, ordered the written statement to be kept in the Part ‘D’, meaning thereby, the said written statement was not to be considered by the learned court below in further proceedings.” (emphasis supplied) 18. A simple look at the aforesaid factual matrix shows that after death of Lichhman Singh, his legal representatives filed a written statement, which was placed by the learned trial court in part ‘D’. Allowing the writ petition filed by the legal representatives, the coordinate Bench held that the written statement filed by the legal representatives could not be kept in Part ‘D’, as the same was against the principles of natural justice and his legal representatives were entitled to be heard. If the facts of the present case are placed in juxtaposition, it is clear that the present case is not at all comparable much less identical to the aforesaid case cited by learned counsel for the petitioner. In the present case, written statement filed by the original defendant is very much on record and by way of the impugned order, the court below has rejected the amendment application seeking amendment in the written statement, and that too at appellate stage. 19. The courts should be liberal in granting due opportunity, when it comes to right of a defendant to defend his case, but such liberal approach cannot be adopted and extended in a situation when the substituted legal representative seeks amendment in the written statement, filed by his predecessor. “A person inheriting the property or the litigation cannot seek amendment, merely because he claims to be more prudent than his propositus or predecessor, at least when it comes to facts…………. Facts once stated or admitted in the pleadings are like inscription on the stone……………. They can neither fade away nor can they be taken away………….not even by the next generation.” 20. The facts are undisputed; late Laxman Singh defendant No. 2 had already filed his written statement on 22.12.2017 in the suit filed by the plaintiff Suraj Kanwar. In the said written statement he had never denied the factum of title of late Shri Hukam Singh and instead he had only asserted that he being an adopted son of Hukam Singh enjoying possession was entitled for the property in question and the plaintiff Suraj Kanwar asserting her right through the Will dated 20.02.1991 cannot take electricity connection on the demised premises. The said defendant took all possible defences and narrated all relevant facts which were in his knowledge, including the pendency of various suits between the parties; but he had never questioned the ownership or title of late Shri Hukam Singh. In a way, Laxman Singh had tacitly conceded the vesting of title in Hukam Singh. As such, the petitioner (defendant No. 2/1) having been substituted as a defendant, cannot deny or refute the admissions so vividly made by his father. 21. In the present case, the entire defence of the defendant No. 2 was based upon possession and if the amendment as prayed by the petitioner is allowed, it would amount to challenging even the title. The proposed amendment will change the frame and fulcrum of the written statement. In considered opinion of this Court, fulcrum or substratum of the written statement cannot be tolerated or allowed to be changed by way of an amendment in the pleadings. That apart, if the proposed amendment is allowed, it would result in miscarriage of justice and would open new fronts in the legal battle in which the parties are otherwise embroiled. Such attempt is contrary to fundamental principles of pleadings. 22. In view of the above, I am of the considered opinion that the amendment application filed by the petitioner deserved dismissal and the same has rightly been dismissed by the court below. The writ petition filed by the petitioner also deserves dismissal, which I hereby do. No order as to costs.