Research › Search › Judgment

Telangana High Court · body

2019 DIGILAW 32 (TS)

D. Rohan v. D. Ravinder

2019-02-01

M.S.RAMACHANDRA RAO

body2019
JUDGMENT : 1. Heard the learned counsel for the petitioners and Sri S.Rajagopalan, learned counsel for the respondents. 2. This Revision Petition is filed under Article 227 of the Constitution of India challenging the order dt.09-11-2018 in I.A.No.336 of 2018 in O.S.No.189 of 2009 of the XX Additional Chief Judge, Secunderabad. 3. Petitioners are defendant Nos.7 and 8 in the said suit which was filed for declaration of title, partition, perpetual injunction, recovery of possession etc. in respect of an item shown in the schedule therein. 4. The father of the petitioners was 1st defendant in the suit. Pending suit, he died and petitioners had been brought on record by order dt.07-03-2018 in I.A.No.411 of 2017. 5. After the petitioners came on record, they sought to file additional Written Statement because though time was granted earlier to them to file additional Written Statement, they did not do so and on 04-06-2018, the Court below had treated that there is no such additional Written Statement, since there was no representation from their side. 6. Then the petitioners filed I.A.No.336 of 2018 to permit the petitioners to file additional Written Statement by setting aside the order dt.04-06-2018. 7. In the additional Written Statement, however they raised certain pleadings contrary to the stand taken by their father, 1st defendant in the suit. While the 1st defendant had taken a plea that the disputed property is a self acquired property of his father, in the proposed written statement, the petitioners took a stand that it is joint family property. 8. The Court below by order dt.09-11-2018 held that such contrary pleas cannot be allowed and such plea is liable to be struck off under Order 6 Rule 16 CPC. It also referred to the decisions in Abdul Razak (D) through L.Rs. and others Vs. Mangesh Rajaram Wagle and others (MANU/SC/0027/2010), Bal Kishan Vs. Om Prakash and others (MANU/SC/0528/1986), Edulakanti Narsimha Reddy and others Vs. Srirama Warehouse (MANU/AP/0865/2007) and Smt. Chandrakala and Others Vs. Kanak Mal and others (MANU/RH/085/2002) and held that after the death of original party, his legal representatives cannot be permitted to take a stand contrary to what had been taken by their predecessor in interest for the reason that legal representatives step into in the shoes of the deceased party. 9. Challenging the same, this Revision Petition is filed. 10. Kanak Mal and others (MANU/RH/085/2002) and held that after the death of original party, his legal representatives cannot be permitted to take a stand contrary to what had been taken by their predecessor in interest for the reason that legal representatives step into in the shoes of the deceased party. 9. Challenging the same, this Revision Petition is filed. 10. In Abdul Razak (1 supra), the Supreme Court held, after referring to Order 22 Rule 4 (1) and (2) CPC that legal representatives can take defence appropriate to his character as legal representative of the deceased defendant; and after referring to the decisions of the Supreme Court in J.C. Chatterjee Vs. Sri Kishan (1972) 2 S.C.C. 461 ) and Vidyawati Vs. Man Mohan (1995) 5 C.C.C. 431), it held that heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased, and they are even entitled to set up independent right, title or interest de hors the claim of the party in whose shoes they stepped into but they cannot take contrary plea to what the deceased already has taken. 11. This principle has been reiterated in the other judgments referred to supra also. 12. Though the learned counsel for the petitioners placed reliance on the judgment of the Supreme Court in Sumtibai and others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj) through Smt. Mankanwar, W/o. Parasmal Chordia (D) and others ( 2007 (6) ALT 20 (SC), wherein the Court expressed a view that a party has a right to take whatever plea he wants to take even if he is legal representative of a deceased party, it appears that the attention of the Court in that case was not drawn to the above decisions of the Supreme Court which have taken contrary view. Also in that case, it does not appear that a plea inconsistent with the plea taken by the original party who had died and in whose shoes, the successors had stepped in was sought to be taken by the successor. 13. I therefore deem it appropriate to follow the judgments in Abdul Razak (D) through L.Rs. Also in that case, it does not appear that a plea inconsistent with the plea taken by the original party who had died and in whose shoes, the successors had stepped in was sought to be taken by the successor. 13. I therefore deem it appropriate to follow the judgments in Abdul Razak (D) through L.Rs. and others (1 supra), Bal Kishan (2 supra), Edulakanti Narsimha Reddy and others (3 supra) and Smt. Chandrakala and Others (4 supra) and hold that to the extent the petitioners have raised plea inconsistent with that raised by the deceased 1st defendant in whose shoes they have stepped in, such pleadings have to be struck off Under order 6 Rule 16 CPC, but the rest of the pleadings raised by the petitioners which are not inconsistent with the Written Statement filed by the deceased 1st defendant can be taken on record; and to that extent, the additional Written Statement can be accepted by the Court below. 14. In this view of the matter, I do not see any error of jurisdiction in the order passed by the Court below warranting interference by this Court under Article 227 of the Constitution of India. 15. Accordingly, the Civil Revision Petition is dismissed. No costs. 16. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.