Sudha Vadehra vs Harsh Malhotra
2013 Latest Caselaw 1937 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment:29.04.2013

+     CM(M) 249/2012 & CM No.3809/2012 (for stay)

      SUDHA VADEHRA                                    ..... Petitioner
                     Through          Mr. Sidharth Yadav, Adv.
              versus

      HARSH MALHOTRA                              ..... Respondent
                  Through             Mr. Sanjeev Mahajan, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The petitioner is aggrieved by the findings returned in the impugned order dated 30.10.2011 vide which his application under Order 8 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') had been dismissed.

2 Record shows that the present suit has been filed by the respondent seeking declaration, permanent and mandatory injunction. The petitioner before this Court is the legal representative of deceased defendant No. 1. Deceased defendant No. 1 had filed a written statement. On an application filed by deceased defendant under Order 7 Rule 11 of the Code, the suit filed by the plaintiff stood dismissed; the plaint had been rejected. An appeal was filed against the said order. In the appeal proceedings, during hearing of the appeal, the father of the

petitioner i.e. defendant No. 1 expired. The RFA was also disposed of on 07.08.2008. The appeal filed by the respondent had been allowed. The order passed by the trial Court under Order 7 Rule 11 of the Code had been set aside. The parties had been directed to appear before the trial Court and the suit was to proceed on its merits. It is also not in dispute that factum of death of deceased defendant had also been brought to the notice of the appellate Court in the RFA proceedings.

3 On remand to the trial Court, an application under Order 22 Rule 4 of the Code had been filed by the respondent. This was noted in the order dated 08.10.2009. On the next date i.e. 10.12.2009, learned counsel for the respondent made a statement that he seeks permission of this Court to withdraw the aforenoted application as the legal representative of the deceased defendant has already been impleaded in the High Court. Accordingly, the application was permitted to be withdrawn. Amended memo of parties was directed to be filed. On the same date, issues were framed and the matter was fixed for the evidence of the plaintiff.

4 Although it has not been pointed out by the learned counsel for the petitioner but the learned counsel for the respondent has pointed out that thereafter two applications were filed by the petitioner herein; the first application was under Order 14 Rule 5 of the Code and the second was another application seeking permission of the Court to bring on record certain additional documents. The first application was partly

allowed and the issues were partly amended. The second application was dismissed. Thereafter the matter proceeded further.

5 It was only in October, 2010 that the present application came to be filed by the petitioner wherein it has been an additional written statement was sought to be filed by the legal representative of the deceased defendant. No proposed written statement had been filed along with application. That apart in this application under Order 8 Rule 1 of the Code there is only a factual narration of the facts. There is no doubt to the legal proposition that under Order 22 Rule 4 (2), the legal representatives of the deceased may file an additional written statement which is appropriate to the legal character to the deceased defendant. What was the proposed amended written statement has not been disclosed to the Court. That apart, even after 10.11.2009 when the amended memo of parties was taken on record and the petitioner had been formally brought on the array of parties, issues having been framed, the evidence was led in part; the petitioner still chose not to assail this order. He did not till almost 11 months later feel the necessity to file an additional written statement. It was only in October, 2010, that he chose to file this present application under Order 8 Rule 1 of the Code. In this intervening period, admittedly PW-1 was examined in chief and also partly cross-examined; two applications filed by the petitioner and (as noted supra) were also dealt with. The proposed written statement was also not a part of the record. What was the defence sought to be set up by the legal representatives of the deceased

defendant; whether it was in conformity with the defence already filed by the defendant or whether it was opposite to it is not known. There is no such averment in the application under Order 8 Rule 1 of the Code. Even on specific query, learned counsel for the petitioner is not able to give any satisfactory answer.

6 In this background, reliance by the learned counsel for the petitioner on AIR 1986 SC 1952 Bal Kishan Vs. Om Prakash and Another and (2007) 10 SCC 82 Sumtibai and Others Vs. Paras Finance Co. is misplaced. Both the judgments were distinct on their own facts. The legal proposition being undisputed that under the provision of Order 22 Rule 4 (2), the right of the legal representatives to file a written statement is not foreclosed; however the proposition is also clear which is to the effect that the additional written statement can raise only those pleas which the deceased defendant had or could have raised and not those which were personal to the deceased defendant. At the cost of repetition, what was the plea sought to be pleaded in the additional written statement has neither been pleaded in the application filed in the trial Court and nor has there been any satisfactory answer being given to this Court.

7 In this background, the impugned order suffers from no infirmity. Petition is dismissed with costs of Rs.7,500/-.

APRIL 29, 2013/A                              INDERMEET KAUR, J.