Bombay High Court
Shaikh Sajid Shaikh Gafar vs Shaikh Salim Shaikh Latif And ... on 19 July, 2022
Bench: Mangesh S. Patil
931-wp NO.7489 OF 2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7489 OF 2022
SHAIKH SAJID SHAIKH GAFAR
VERSUS
SHAIKH SALIM SHAIKH LATIF AND ANOTHER
...
Advocate for Petitioner : Mr. Arvind S. Deshmukh
...
CORAM : MANGESH S. PATIL, J.
DATED : 19 JULY 2022
PER COURT :
Heard the learned advocate Mr. A. S. Deshmukh for the petitioner.
2. The petitioner is the original plaintiff, who has filed a suit for
perpetual injunction simplicitor restraining the respondents from obstructing
his possession in the suit property.
3. Original defendant no.2 - Rameshlal had filed a written
statement, inter alia, disputing petitioner's title and possession. After his
demise, the respondent nos. 2/1 to 2/4 filed their written statement after they
were brought on record as legal representatives.
4. The petitioner submitted an application (Exhibit-88) taking
objection to some portion of the pleadings incorporated in the written
statement of these legal representatives stating that those have been
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incorporated with an ulterior motive to cause prejudice to him and that the
averment which were personal to the deceased Rameshlal have also been
touched.
5. It appears that the application was decided earlier also and the
petitioner had approached this court in Writ Petition No.6031 of 2019. By
referring to the decisions in the matters of Vidyawati Vs. Man Mohan and
others, AIR 1995 SC 1653; Bal Kishan Vs. Om Prakash, AIR 1986 SC 1952;
and Jagdish Chandar Chatterji Vs. Srikishan, AIR 1972 SC 2526 , the writ
petition was disposed of with following observations in paragraph no.7 of
order dated 12-07-2019 :
"07. As such, this petition is disposed off. Nevertheless, it be
noted that the petitioner would be at liberty to point out the
averments which pertain to the personal issues of the deceased
defendant. The Trial Court would then consider the law laid
down by Honourable Apex Court in the above referred cases."
Pursuant to such observations, the trial court once again has
decided the application (Exhibit-88) by the order under challenge.
6. The learned advocate Mr. Deshmukh would strenuously submit
that the proposed amendment whereby the LRs. of the original defendant no.2
are now seeking to raise the issues which the deceased could have but had not
raised and they are not entitled to take any such stand as has been laid down
in the aforementioned cases. He would pertinently point out that in the
written statements of these LRs., issue regarding the effect of the decisions in
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the earlier round of litigation have been spelt out. The deceased could have
taken such a plea, but he having not done so, allowing the legal
representatives to take such a plea would be beyond the purview of law, in
view of the provisions of Order XXII Rule 4(2) of the Code of Civil Procedure.
The trial court has not considered the law, though it has referred to the
decisions in the matters of Jagdish Chandar Chatterji and Vidyawati (Supra)
and has erred in rejecting the application (Exhibit-88).
7. I have carefully perused the judgments cited at the bar (supra),
the order passed by the trial court and the pleadings.
8. As can be appreciated, the petitioner has been claiming to be the
owner in exclusive possession of the suit property and has prayed for
perpetual injunctions etc.
9. The original defendant no.2 Rameshlal in his written statement
had inter alia disputed not only title but even possession. By the proposed
amendment his legal representatives have not changed the stance. They
continue to dispute the title and possession. In addition, what they have
averred is that the decisions in the earlier round of litigation in R.C.S. No. 103
of 1962 which was a litigation between the deceased defendant no.2
Rameshlal and the predecessor-in-title of the petitioner has no nexus to the
title being set up by the latter (petitioner). True it is that even the deceased
defendant no.2 Rameshlal could have taken such a stand, however, it cannot
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be said that this stand is personal to him or is inconsistent with the written
statement filed by him. Rather, this is one of the parameters to be borne in
mind as laid down in the matter of Bal Kishan (supra) wherein it has been
observed as under :-
"The sub-rule (2) of Rule 4 of Order 22 authorises 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."
10. If such is the position in law, when the written statement filed by
the legal representatives of the deceased defendant no.2 Rameshlal does not
intend to withdraw any admission or is not inconsistent with the stand that
was taken by him and does not touch to anything personal to him, it cannot be
said that the written statement filed by the respondent nos.2/1 to 2/4 is not
admissible and is violative of the limitations prescribed by Order XXII Rule 4 of
the Code of Civil Procedure.
11. The trial court has apparently borne in mind the principles which
govern the law and has correctly evaluated the fact situation in the matter.
The impugned order is neither perverse nor arbitrary.
12. Writ petition is dismissed.
( MANGESH S. PATIL, J.)
Tandale/-
