Raj Prakash Decd. Thr .Lrs vs Jai Prakash Thr. Lrs
2012 Latest Caselaw 2673 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on: 20.04.2012
                                  Judgment deliveredon 24.04.2012.

+                    CM(M) 1485-89/2005


RAJ PRAKASH DECD. THR .LR'S                 ..... Petitioner
                  Through: Mr.Sanjeev Sindhwani,
                            Advocate.

                     versus


JAI PRAKASH THR. LR'S                                  ..... Respondent
                   Through:             Mr.Vipin K. Singh, Advocate.


        CORAM:
        HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 Order impugned before this Court is the order dated 13.4.2005

whereby the application filed by the legal representatives of the sole

defendant (under Order 8 Rule 9 read with Order 22 Rule 4(2) read with

Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to

as the Code) had been dismissed.

2 Record shows that the present suit is a suit for partition which was CM(M) No.1485-89/2005

filed in the year 1992 by the plaintiff against the sole defendant, his

brother. Written statement was filed by the defendant on 06.9.1993;

issues were framed on 25.7.1994; thereafter the defendant expired and

his legal representatives had been brought on record vide order dated

31.3.2003; on 13.8.2003 the present application had been filed; the

contention of the legal representatives of the deceased defendant was

that they have their own independent right to file a written statement;

this prayer made in the present application has been rejected.

Admittedly along with this application the proposed written statement

was not filed. Learned counsel for the petitioner has placed reliance

upon a judgment of this Court reported in AIR 1992 Delhi 162 Saiyed

Siurajul Hasan Vs. Syed Murtaza Ali Khan Bahadur & Ors. to support

his submission that the provisions of Order 22 Rule 4 of the Code

permits the legal representatives of the deceased defendant to take up

"any defence', only limitation being that the defence so made must be

"appropriate to his character as the legal representative of the deceased

defendant". Reliance has also been placed upon other judgments

reported in AIR 1995 SC 1653 Vidyawati Vs. Man Mohan & Ors. , JT

CM(M) No.1485-89/2005

2010(1) SC 508 Abdul Razak Vs. Mangesh Rajaram Wagle & Ors. to

support a submission that the legal representatives have a right to set up

their own defence. Submission being that in the judgment of Abdul

Razak (supra) even an inconsistent plea was permitted to be set up by

the legal representatives of the deceased defendant.

3 Arguments have been countered. Submission being that limitation

as contained in Order 22 Rule 4 (2) of the Code has to be strictly

adhered to and the defence of the legal representatives of the deceased

defendant is restricted to the language contained therein; meaning

thereby that such defence must be "appropriate to his character as a legal

representative of the deceased defendant". Reliance has also been placed

upon a judgment reported in AIR 2004 P & H 204 Gaurav Uppal Vs.

Sunita Uppal , submission being that at best the legal representatives of

the deceased defendant are permitted to amend the written statement;

further submission being that in this case admittedly the proposed

written statement is not on record and the proposed plea which the legal

representatives of the deceased defendant now seek to incorporate can

be taken care of by an application seeking amendment of the earlier

CM(M) No.1485-89/2005

written statement.

4 Record has been perused. The submission which has to be

answered is a legal submission. Language of Order 22 Rule 4 of the

Code is relevant; the said provision reads as under:

"ORDER XXII- DEATH, MARRIAGE AND INSOLVENCY OR PARTIES ..........................

..........................

4 . Procedure in case of death of one of several defendants or of sole defendant-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub- rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such

CM(M) No.1485-89/2005

defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where--

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]"

5 This statutory mandate makes it clear that a person who has been

made a party under Order 22 Rule 4 of the Code may make "any

defence", the limitation being that the defence so made must be

appropriate to his character as legal representatives of the deceased

defendant.

6 The averments made in the application filed by the plaintiff

before the trial court have been perused. This is an application filed

under Order 22 Rule 4 read with Order 1 Rule 10 of the Code. The

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proposed written statement has not been filed along with the said

application. A perusal of this application shows that the legal

representatives have contended that in this suit for partition since the

properties have been jointly inherited by them as well they can set up

their own individual defence and this right is an independent right which

is available to them under the provisions of Order 1 Rule 10 of the

Code.

7 Record shows that on 31.3.2003 the legal representatives of the

deceased defendant had been brought on record. This was on an

application filed by the plaintiff under Order 22 Rule 4 of the Code.

The present application has been filed on 13.8.2003 i.e. after a lapse of

four months. Admittedly along with this application the proposed

additional written statement has also not been filed; as such this Court is

at loss to know what additional pleas the legal representatives of the

deceased defendant wish to incorporate in their written statement;

whether they are consistent or inconsistent with the pleas taken by the

deceased defendant are not known to the court. The application filed by

the petitioner under Order 22 Rule 4 read with Order 1 Rule of the

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Code is also lacking in particulars about this averment; it nowhere

discloses the defence which is to be set up by the legal representatives of

the deceased defendant.

8 The Apex Court in a judgment reported in AIR 1986 SC 1952 Bal

Kishan Vs. Om Prakash & Anr. had noted in the context of Order 22

Rule 4(2) of the Code noted herein below:

"The Sub-rule (2) of Rule of Order 22 authorised 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."

9 The same view was expressed in a judgment reported in AIR SC

2526 Jagdish Chander Chatterjee Vs. Sri Kishan; relevant extract of

which reads hereinunder:

"The 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 representative 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 Lrs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title."

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10 Record shows that the present petitioners in their capacity as legal

representatives of deceased defendant have been impleaded on

31.3.2003 on an application under Order 22 Rule 4 of the Code. The

petitioners had been impleaded only in their capacity as legal

representatives of the deceased defendant; the order dated 31.3.2003 is

clear; this order was passed on the application under Order 22 Rule 4 of

the Code; the petitioners have not been impeladed on any independent

right, title or interest in the property which order could have been passed

only on an application under Order 1 Rule 10 of the Code. The

proposed written statement is also not a part of the record.

11 Impugned order declining the prayer in this factual scenario thus

suffers from no infirmity.

12 The judgments relied upon by the learned counsel for the

petitioners are clearly distinguishable. In the case of Vidyawati (supra)

the Apex Court had noted that if the legal representatives were to set up

any independent right, title or interest in the property they have to be

impleaded as a party in their own right which application has to be filed

under Order 1 Rule 10 of the Code; as noted supra the petitioners have

CM(M) No.1485-89/2005

already been impleaded vide order dated 31.3.2003 which was on an

application under Order 22 Rule 4 of the Code limiting their right only

to the defence being available to them which is appropriate to their

character as legal representatives of the deceased defendant. The

judgment of Abdul Razak (supra) is also not applicable. This was a case

where the legal representatives of the deceased defendant had filed their

additional written statement in 2004 and the application filed by the

plaintiff three years later seeking striking out of the defence of the

defendant under Order 6 Rule 16 of the Code had been rejected. In the

present case there is no written statement of the legal representatives

which is on record.

13 Impugned order calls for no interference. Dismissed.

INDERMEET KAUR, J APRIL 24, 2012 A

CM(M) No.1485-89/2005