Shakuntala Devi vs (Deleted) Smt. Yashoda
2022 Latest Caselaw 6922 Chatt

                                                       Page 1 of 13


                                                             NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                Order Reserved on: 13.10.2022
                Order Delivered on: 18.11.2022
                    WP227 No. 147 of 2020

1. Shakuntala Devi W/o Late Mohan Aged About 59 Years R/o
   Company Bazar , Nagar , Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.
2. Sanjay Gupta S/o Late Mohan Aged About 39 Years R/o
   Company Bazar , Nagar , Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.

3. Rakesh Gupta S/o Late Mohan Aged About 35 Years R/o
   Company Bazar , Nagar , Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.
4. Rajesh Gupta S/o Late Mohan Aged About 29 Years R/o
   Company Bazar , Nagar , Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.               ---- Petitioners
                         Versus
1. (Deleted) Smt. Yashoda As Per Hon'ble Court Order Dated 23-
   08-2022.
2. Girja Prasad Gupta S/o Late Ramdev Aged About 60 Years R/o
   Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.
3. Smt. Malti Gupta D/o Late Sudama Prasad Gupta Aged About
   50 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil
   Ambikapur , District Surguja Chhattisgarh.
4. Gagan Gupta S/o Late Sudama Prasad Gupta Aged About 28
   Years R/o Sadar Road, Ambikapur , Police Station And Tahsil
   Ambikapur , District Surguja Chhattisgarh.
5. Megha Gupta D/o Late Sudama Prasad Gupta Aged About 25
   Years R/o Sadar Road, Ambikapur , Police Station And Tahsil
   Ambikapur , District Surguja Chhattisgarh.

6. Akash Gupta S/o Late Sudama Prasad Gupta Aged About 22
   Years R/o Sadar Road, Ambikapur , Police Station And Tahsil
   Ambikapur , District Surguja Chhattisgarh.

7. Raju Gupta S/o Late Ramdey Aged About 40 Years R/o Sadar
   Road, Ambikapur , Police Station And Tahsil Ambikapur , District
   Surguja Chhattisgarh.
8. Dhaneshwari Devi W/o Late Ramkewal Aged About 75 Years R/
   o Mahamaya Road, Ambikapur , Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.

9. Rajendra Keshri S/o Late Ramkewal Aged About 60 Years R/o
   Mahamaya Road, Ambikapur , Police Station and Tehsil
   Ambikapur , District Surguja Chhattisgarh.
10.Ashok Keshari S/o Late Ramkewal Aged About 57 Years R/o
   Mahamaya Road, Ambikapur , Police Station And Tehsil
                                                        Page 2 of 13


  Ambikapur , District Surguja Chhattisgarh.
11.Radheshyam Keshari S/o Late Ramkewal Aged About 54 Years
   R/o Mahamaya Road, Ambikapur , Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
12.Kapil S/o Late Jeetu Aged About 55 Years R/o Mahamaya
   Chowk , Near Abhinav Talkies, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
13.Vidya D/o Late Jeetu Aged About 52 Years R/o Mahamaya
   Chowk , Near Abhinav Talkies, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
14.Prabhudayal S/o Late Jeetu Aged About 45 Years R/o
   Mahamaya Chowk , Near Abhinav Talkies, Police Station And
   Tehsil Ambikapur , District Surguja Chhattisgarh.
15.Kishore S/o Late Jeetu Aged About 38 Years R/o Mahamaya
   Chowk , Near Abhinav Talkies, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
16.Rajesh S/o Late Surajdev Aged About 42 Years R/o Kadambi
   Road, Sadar Road, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
17.Ambikesh S/o Late Surajdev Aged About 38 Years R/o Kadambi
   Road, Sadar Road, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
18.Durgesh S/o Late Surajdev Aged About 35 Years R/o Kadambi
   Road, Sadar Road, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
19.Savitri Devi W/o Late Chandradev Aged About 67 Years R/o
   Kadambi Road, Sadar Road, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
20.Sushil Kumar Gupta S/o Late Chandradev Aged About 47 Years
   R/o Kadambi Road, Sadar Road, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
21.Anil Kumar Gupta S/o Late Chandradev Aged About 44 Years R/
   o Kadambi Road, Sadar Road, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.
22.Siddhanshu S/o Late Gourishankar Aged About 25 Years R/o
   Bramhroad, Nagar , Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.

23.Himanshu S/o Late Gourishankar Aged About 22 Years R/o
   Bramhroad, Nagar , Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.
24.Damyanti Devi W/o Late Jaishankar Aged About 50 Years R/o
   Bramhroad, Nagar , Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.
25.Avinash Gupta S/o Late Jaishankar Aged About 28 Years R/o
   Bramhroad, Nagar , Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.

26.(Deleted) Smt. Kamoda Devi, As Per Hon'ble Court Order Dated
   23-08-2022.
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27.Vinod S/o Late Laxmi Aged About 40 Years R/o Company Bazar
   , Ambikapur , District Surguja Chhattisgarh.
28.Vijay S/o Late Jamuna Aged About 55 Years R/o Company
   Bazar , Ambikapur , District Surguja Chhattisgarh.
29.Arjun S/o Late Jamuna Aged About 48 Years R/o Company
   Bazar , Ambikapur , District Surguja Chhattisgarh.
30.Pankaj S/o Late Kamlesh Aged About 23 Years R/o Company
   Bazar , Ambikapur , District Surguja Chhattisgarh.

31.Deepak S/o Late Kamlesh Aged About 19 Years R/o Company
   Bazar , Ambikapur , District Surguja Chhattisgarh.

32.Smt. Urmila Devi W/o Late Ajay Aged About 60 Years R/o Sadar
   Road , Nagar, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
33.Vinay Kumar Keshri (Died), Through Legal Heir As Per Hon'ble
   Court Order Dated 23-08-2022.
        33.1 - (A) Deepa Keshri W/o Late Vinay Kumar Keshri
      Aged About 39 Years
34.Vinit Kumar Keshari S/o Late Ajay Aged About 26 Years R/o
   Sadar Road , Nagar, Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.
35.Virendra S/o Late Sheetal Aged About 54 Years R/o Sadar Road
   , Nagar, Police Station And Tehsil Ambikapur , District Surguja
   Chhattisgarh.
36.Sanchu S/o Late Sheetal Aged About 50 Years R/o Sadar
   Road , Nagar, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
37.Bijendra Gupta S/o Late Munshi Prasad Aged About 45 Years R/
   o Old Bus Stand , Nagar Police Station And Tahsil Ambikapur ,
   District Surguja Chhattisgarh.
38.Triveni S/o Ramnath Aged About 40 Years R/o Village Batwahi,
   R.I. Circle Lundra , Tehsil Lundra, District Surguja Chhattisgarh.
39.Ravi S/o Ramnath Aged About 38 Years R/o Village Batwahi,
   R.I. Circle Lundra , Tehsil Lundra, District Surguja Chhattisgarh.
40.Munni Devi W/o Late Kamlesh Aged About 45 Years R/o
   Company Bazar , Nagar , Ambikapur , District Surguja
   Chhattisgarh.
41.Prabha Devi W/o Late Surajdev Aged About 65 Years R/o
   Kadambi Road, Sadar Road, Police Station And Tehsil
   Ambikapur , District Surguja Chhattisgarh.

42.Shail Devi W/o Late Gourishankar Aged About 50 Years R/o
   Bramhroad, Nagar, Police Station And Tehsil Ambikapur , District
   Surguja Chhattisgarh.
43.Surajpur Devi W/o Late Jeetu Aged About 80 Years R/o
   Mahamaya Chowk , Ambikapur , District Surguja Chhattisgarh.
44.Abbas Khan S/o Abdul Hakim Khan Aged About 52 Years R/o
   Mominpura, Ambikapur , Police Station And Tehsil Ambikapur ,
   District Surguja Chhattisgarh.
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  45.Mohammad Hamid S/o Jahur Ali Aged About 36 Years R/o
     Village Batwahi, Police Station And Tehsil Lundra , District
     Surguja Chhattisgarh.
  46.State of Chhattisgarh Through Collector , Surguja , District
     Surguja Chhattisgarh.                     ---- Respondents

For Petitioners : Shri Manoj Paranjpe, Advocate with Shri Bharat Sharma, Advocate

For Respondent Nos.7, 9 to 12, : Shri A. K. Prasad, Advocate with 14 to 25, 32 to 34 & 41 to 43 Shri Rishikant Mahobia, Advocate

For State/Respondent No.46 : Shri Lalit Jangde, Dy. G. A.

Hon'ble Shri Justice Rakesh Mohan Pandey CAV ORDER

1) This petition is filed by legal heirs of defendant No.15 challenging

herein the legality and propriety of the order dated 22.01.2020,

passed in Civil Suit No. 76- A/13 by IInd Civil Judge Class-II,

Ambikapur, Surguja, whereby application filed by the petitioners

under Order 22 Rule 4(2) read with section 151 of the CPC for

taking written statement on record, has been dismissed.

2) The case in nutshell is that, original plaintiff namely Ramdev filed

a Civil Suit for declaration of title, partition and permanent

injunction. The plaintiff and defendants are legal heirs of late

Ishwar and Raghuwar Sahu. The plaintiff pleaded that the

property detailed in Schedule-A annexed with the plaint situated

at Village Batwahi, Tahsil- Lundra, District- Sarguja (CG) was

recorded in name of Raghuvir Sahu and late Ishwar Sahu during

Sarguja State Settlement and later on, it was partitioned between

them. Revenue records were also corrected. It is also pleaded

that late Ishwar Sahu during his lifetime, partitioned his share

mentioned in Schedule-B & C appended with the plaint amongst

his sons. The plaintiff further pleaded that the land bearing

Survey No. 542/2, 1438/2, 1438/5 fell in his share. The

defendant Nos.1, 14 and 16 by playing fraud, had executed the

sale deed in favour of defendant Nos. 22, 23 and 24 on

19.09.2008 and they were interfering in the peaceful possession

of the plaintiff, therefore, he filed suit for 1/4 th share of the

property described in Scheduled-C, and, declaration was also

sought to the effect that the sale deed executed in favour of the

defendant No. 22, 23 and 24 is null and void up to the share of

the plaintiff but defendant No. 2, 3, 4, 5, 6, 7, 8, 10, 12, 15, 18,

20 and 21 filed their written statements and denied the

averments made in the plaint. Counter claim was also filed by

them seeking therein 1/4th share of the property described in

Schedule- C, 1/4th share of the property described in Schedule-

B, declaration of the sale deed dated 10.09.2008 as null and

void, and, sale deeds executed pertaining to plot numbers

1438/2, 1438/3 and 1438/5 are null and void up to their share

and for permanent injunction.

3) During the pendency of Civil Suit, the defendant No. 15 namely

Mohan died on 16.11.2015 and his legal heirs i.e. the petitioners

herein were brought on record. They were proceeded ex-parte

on 26.10.2016 and thereafter an application under Order 9 Rule

7 of the CPC was moved and the same was allowed by the

learned trial court vide order dated 20.12.2019.

4) The petitioners/legal heirs of defendant No.15 filed their written

statements along with an application under Order 22 Rule 4(2)

read with Section 151 of the CPC for taking written statement on

record on behalf of the legal heirs of the defendant No. 15. Oral

objection was raised by the plaintiff on application moved by the

petitioners. The learned trial court vide order dated 22.01.2020

rejected the said application on the ground that the legal heirs of

the defendant No.15 have pleaded contrary to the pleading

made by the original defendant which is not permissible.

5) Learned counsel for the petitioners submits that the order

passed by the learned trial court is erroneous and contrary to

law. He further submits that the learned trial court ought to have

appreciated the fact that not taking of the written statement on

record would cause great loss to the petitioners herein as no

written statement was filed by the original defendant No.15. He

also submits that the time limit prescribed under Order 8 Rule 1

of the CPC is directory and not mandatory and thus the Court

may in its discretion allow the party to file the written statement

beyond the period of 90 days, if sufficient reason is assigned. He

has placed reliance upon the judgment of the Hon'ble Supreme

Court in the case of Salem Advocate Bar Association (II) Vs.

Union of India reported in 2005 (6) SCC 344 and Abdul Razak

(dead) through Lrs. and Others Vs. Mangesh Rajaram Wagle

and Others, 2010 (2) SCC 432.

6) Per Contra, learned counsel for the respondents would submit

that written statement was filed by the deceased defendant

No.15 and his signature is available on the written statement and

counter claim. He further submits that the petitioners/defendants

have taken new stand in written statement by filing an application

under Order 22 Rule 4(2) of the CPC. He submits that the

petitioners are claiming right over the property by virtue of will

deed dated 17th January, 1978, executed by Smt. Maheshwa wd/

o Raghunath, Shital Prasad S/o Ishwar Sao and plaintiff Ramdev

S/o Ishwar Sao in favour of Vijay Prasad Gupta, Mohan Prasad

Gupta, Arjun Prasad Gupta, Kamlesh Prasad Gupta of the

agricultural land ad-measuring 20 acres situated at village-

Batwahi, whereas, no such claim was made by the original

defendant No. 15 in the written statement filed on 19th February,

2010.

7) Mr. Prasad submits that the learned trial court rightly rejected

the application moved by the legal hairs of the defendant No.15.

It is well settled that the legal hairs of deceased defendant have

right to file written statement after death of the original defendant

but if they deviate from the pleading made by the original

defendant, then they will have to move an application under

Order 1 Rule 10 of the CPC to take such additional stand.

8) I have heard learned counsel for the parties and perused the

material on record.

9) It would be advantageous to go through the provision of Order

22 Rule 4 (2) of the CPC which is given as under:-

"4. Procedure in case of death of one of several defendants or of sole defendant.- (2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant."

10) In the matter of Vidyavati Vs. Man Mohan and Others, (1995) 5

SCC 431, the Hon'ble Supreme Court considered the scope of

Order 22 Rule 4 (2) of the CPC, the relevant para Nos. 3, 4, 5 and

6 are reproduced herein below:-

"3. It is seen that the petitioner's claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now

admitted across the Bar that the first defendant had life interest created under the will executed by Champawati. Therefore, the said interest is co-terminous 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 proceeding. It is true that when the petitioner was impleaded as a party-defendant, all rights under Order 22, Rule 4(2), and defences available to the deceased defendant became 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. This is the view the court below has taken rightly.

4.This Court in Bal Kishan V. Om Parkash (1986) 4 SCC 155: AIR 1986 SC 1952 has said thus:

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.

5.The same view was exressed in Jagdish Chander Chhatterjee V. Sri Kishan (1972)2 SCC 461: (1973)1 SCR 850 wherein this Court said:

(SCC pp. 464-65, para 10)

... Legal representative of the deceased respondent was entitled to make any defence appropriate to 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.

6.This being the position in law, the view of the court below is perfectly legal. It is 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. We do not find any error of jurisdiction or material irregularit committed in the exercise of jurisdiction by the court below warranting our intereference.

                  The       SLP     is,     accordingly,
                  dismissed."

In the above case, the Hon'ble Supreme Court has held

that if a person has independent right, title and interest other than

the claim of the first defendant, is a matter to be gone into at a

later proceeding. It is true that when the person was impleaded as

a party-defendant, all rights under Order 22, Rule 4 (2) of the

CPC, and defences available to the deceased defendant became

available to him. In addition, if the person had any independent

right, title or interest in the property then he has to get himself

impleaded in the suit as a party defendant in which event he could

set up his own independent right, title and interest, to resist the

claim made by the plaintiff. The Hon'ble Supreme Court in para-6

permitted the petitioner therein to get impleaded in independent

capacity under Order 1 Rule 10 of the CPC or to retain the right to

file independent suit asserting own right.

11) In the matter of Jagdish Chander Chatterjee Vs. Sri Kishan,

(1972) 2 SCC 461: (1973)1 SCR 850 the Hon'ble Supreme Court

in para 10 has held as under:

"10.Under sub-clause (ii) of Rule 4 of Order XXII, Civil Procedure Code any person so made a party as a legal representative of the deceased, respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent was entitled to make any defence appropriate to 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."

12) In the case of Bal Kishan Vs. Om Parkash, (1986) 4 SCC 155:

AIR 1986 SC 1952 in para 4 has held as under:

"4. But in the instant case the appellant cannot claim the benefit of the above decision for two reasons. First, the appellant hand not been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal. Secondaly, in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself. The observations made in the Jagdish Chander Chatterjee case have to be confined to only those cases where the court hearing the

case has jurisdiction to try the issues relating to independent title also. The Rent Controller, who had no jurisdiction to pass the decree for possession against a trespasser could not have, therefore, impleaded the appellant as a respondent to the petition for eviction in his independent capacity. We do not, therefore, find any substance in the above plea of the appellant. Further the plea of the appellant that he was hoding the property as a trespasser is also not tenable because the possession of Musadi Lal being permissive, the possession of the appellant who had succeeded to the estate of Musadi lal as his heir could not be that of a trespasser in the circumstance of the case. He could not, therefore, resist the passing of the decree for eviction on proof of the ground in Section 13(2)(ii)(a) of the Act.

13) The Hon'ble Supreme Court in the case of Abdul Razak (dead)

through LRs and Others Vs. Mangesh Rajaram Wagle and

Others, 2010 (2) SCC 432 has distinguished the Bal Kishan and

Vidyawati case as under :-

"33. The judgments of Bal Kishan case and Vidyawati case are clearly distinguishable. In the first case, the earlier judgment in Jagdish Chander Chatterjee case, which substantially supports the appellants was distinguished on the ground that the plea raised by the impleaded legal representative of the tenant was inconsistent with his defence and if accepted, the same would result in ouster of the jurisdiction of the Rent Cotroller. In the second case also, the Court found that the plea raised by the appellant, who was impleaded as legal representative of the defendant that she had independent title under the will executed by Champawati was not in consoanance with the plea taken by the original defenandant.

However, as discussed in the earlier part of the judgment, the

claim made by the appellants is in no way inconsistent with or derogatory to the defence set up by Abdul Razak. In any case, once the additional written statement filed by the appellants was taken on record without any objection by Respondents 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order 6 Rule 16 CPC and considering whether Respondents 1 and 2 were able to make out a case for exercise of power by the court under that provision."

14) In the case in hand also, the legal heirs of the defendant No.15

have taken a new plea of right over the property by virtue of the

will deed which was not taken by the original defendant in the

written statement and the present case is also distinguishable

from the judgments relied by the learned counsel for the petitioner

as the written statement as well as counter claim was filed by the

original defendant No.15 but his legal heirs have denied the

signatures, whereas, civil suit was filed on 08.04.2019 and written

statement along with the counter claim was filed on 23.02.2010. It

is also pertinent to note here that the original defendant No.15

died on 16.11.2015 and till that date no objection was raised by

him and further, no plea was taken in this regard.

15) In the case of Kalawati Gupta Vs. Krishan Kumar And Ors.,

passed in Civil Revision No. 2712 of 1998 decided on

07.02.2001 by this Court where it was held that :

"It is trite that when a person is brought on record in his/her capacity as a legal representative, then he/she is bound by the pleadings already raised by the

deceased, he/she cannot raise pleadings or defence which were otherwise not available to the original party,"

16) Now coming to the facts of the present case. In light of the law laid

down by the Hon'ble Supreme Court as well as by this High Court,

it is apparent that earlier, written statement as well as the counter

claim was filed by the original defendant No.15 and for long five

years no objection was raised to the effect that no written

statement has been filed by him, but after his death his legal

representatives filed an application under Order 22 Rule 4(2) of

the CPC along with additional written statement taking a different

stand, which is not permissible under the law.

17) Considering the provisions of Order 22, Rule 4(2) of the CPC and

law laid down in this regard, I am of the view that the learned

Court below has rightly rejected the application moved by the

petitioners under Order 22 Rule 4(2) read with section 151 of the

CPC.

18) In the result, the petition is dismissed; however, there shall be no

order as to cost(s).

               -                                      Sd/-

                                             (Rakesh Mohan Pandey)
                                                    Judge
Nadim