Orissa High Court
Sukanta Bhatta & Ors vs Radhamohan Dev Bije & Ors. .... Opposite ... on 9 October, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Oct-2025 18:01:33
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.433 of 2025
(In the matter of an application under Article 227 of the Constitution
of India)
Sukanta Bhatta & Ors. .... Petitioners
-versus-
Radhamohan Dev Bije & Ors. .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr. A.K.Mohanty, Advocate
For Opposite Parties : Mr. S.Mishra, Advocate for
O.P.48 & 50
Mr. A.Mishra, Advocate for
O.P.18, 19 and 20
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
9 October 2025
B.P. Routray, J.
1. Heard Mr. A.K.Mohanty, learned counsel for the Petitioners,
Mr. S.Mishra, learned counsel for Opposite Parties 48 and 50 and
Mr. A.Mishra, learned counsel for Opposite Parties 18, 19 and 20.
Location: High Court of Orissa, Cuttack
2. Notice to other Opposite Parties were not sent on the request
of the Petitioners as Opposite Parties 18, 19 and 20 are the
contesting Opposite Parties.
3. Present Petitioners being the Plaintiff filed T.S. No.406 of
1988 praying for declaration of right over the suit scheduled
properties and permanent injunction along with other consequential
reliefs.
4. Initially Defendants No.14 and others having been deprived of
filing their written statement, had approached this Court in W.P.(C)
No.6853 of 2010 challenging order dated 6th October 2009 passed by
the Trial Court. This Court vide order dated 25 th November 2019
permitted all such Defendants who were the Petitioners in W.P.(C)
No.6853 of 2010 (including original Defendant No.14) to file their
written statement within a period of two weeks thereof. Pursuant to
order dated 25th November 2019 of this Court Defendants No.8(b),
11, 12, 15 and 16(b) have filed their written statement. But in the
meantime, original Defendant No.14, who was Petitioner No.5 in
W.P.(C) No.6853 of 2010, died on 4th September 2016 and he was
then substituted by Defendants No.14(a) & 14(b) vide order dated
Location: High Court of Orissa, Cuttack
13th January 2020 of the Trial Court. Be that as it may, Petitioner
No.5 in the writ petition was not substituted till disposal of the writ
petition on 25th November 2019. Nevertheless, order dated 13th
January 2020 permitting substitution of original Defendant No.14
vice Defendants No.14(a) to 14(b) was never challenged by any of
the parties. After substitution was effected, Defendant No.14(a) on
the date of his appearance, i.e. on 22nd December 2021 filed a memo
stating to adopt the written statement earlier filed by Defendant
No.8(b), 11, 12, 15 and 16(b). It is needless to say that learned Trial
Court has accepted the prayer of Defendant No.14(a) as per his
memo to adopt the written statement on his part. This order of
learned Trial Court dated 22nd December 2021 is also not challenged
by any of the parties till date.
5. Subsequently Defendant No.14(a) died and he was substituted
vice his LRs Viz. 14(a)(i) to 14(a)(iii). Said newly substituted
Defendants upon their appearance filed a written statement on their
part which was accepted by the Trial Court vide order dated 2 nd
December 2024.
Location: High Court of Orissa, Cuttack
6. Being aggrieved by order dated 2nd December 2024 of the
Trial Court, Plaintiffs approached this Court in CMP No.35 of 2025.
This Court (Co-ordinate Bench) vide order dated 15th January 2025
disposed of the CMP as withdrawn with an observation that in the
event the Plaintiffs file an application for recall of order dated 2nd
December 2024 with fresh objection, the same shall be considered in
accordance with law. Consequently a petition dated 18 th January
2025 was filed by the Plaintiffs to recall the earlier order dated 2nd
December 2024. The learned Trial Court upon consideration has
rejected the prayer of the Plaintiffs to recall its earlier order dated 2 nd
December 2024, and the same is the order impugned in the present
CMP.
7. Mr. Mohanty, learned counsel for the Petitioners submit that
the earlier acceptance of memo of Defendant No.14(a), who was the
predecessor of present Defendants No.14(a)(i) to 14(a)(iii), cannot
be held in accordance with law to treat the W.S. of other Defendants
as one filed from the side of these Defendants. According to Mr.
Mohanty, the pleadings which were not filed in terms of the
provisions contained in Order 7 and Order 8 of the CPC cannot be
taken as pleadings on record on behalf of a particular party. He
Location: High Court of Orissa, Cuttack
further emphasizes that a memo without any verification and
affidavit with regard to the contents of the pleadings cannot be
treated as a valid document to accept or adopt the pleadings filed by
others.
8. Mr. S.Mishra and Mr. A.Mishra, learned counsels appearing
for those Opposite Parties submit that when the order of acceptance
of the memo filed by Defendant No.14(a) to adopt the W.S. filed by
other Defendants was never questioned to raise objection on such
order of the Trial Court permitting Defendant No.14(a) to adopt the
written statement of other Defendants, now it cannot be questioned
in the present stage.
In addition, it is submitted by Mr. A.Mishra, learned counsel
for Defendants No.14(a)(i) to 14(a)(iii) that the written statement
presently filed by these Defendants after they were brought on
record upon substitution is not different from the earlier W.S. filed
by other Defendants and adopted by previous Defendant No.14(a).
Therefore, there should not have any objection on the part of the
Plaintiffs to accept such written statement filed on behalf of present
Defendants No. 14(a)(i) to 14(a)(iii).
Location: High Court of Orissa, Cuttack
9. Mr. Mohanty, learned counsel for the Petitioners relies on the
decision of this Court passed in Anantram Bhotra vs. Pratima
Bhotra & Ors, AIR 2024 Ori 126, to substantiate his contention that
a substituted Defendant do not have any right to file his independent
W.S. different from the written statement filed by his predecessor.
But as it seen from the given facts of the present case, the said
decision cited by Mr. Mohanty is not found applicable to present
facts of the case for the reason that present CMP is on the question
that whether the initial memo filed by Defendant No.14(a) adopting
the written statement of others would be questioned at this stage. At
the same time, there is no difference of opinion among the parties
that present W.S. filed by Defendants No. 14(a)(i) to 14(a)(iii) is not
containing any additional or new fact than the previous adopted
written statement.
10. The Hon'ble Supreme Court in Mohammed Yusuf vs. Faij
Mohammad & Ors., 2009 (3) SCC 513, have explained upon
analysis of other previous decisions on the right of the Defendant to
file his written statement beyond the statutory period mentioned in
the CPC. However, this citation as relied by Mr. Mohanty, learned
counsel for the Petitioners is not found relevant in the given facts of
Location: High Court of Orissa, Cuttack
the present case. It is true that a substituted Defendant, who steps
into the shoe his predecessor in the capacity of legal representative,
has no right to file a separate written statement taking a new stand
than taken in the previous written statement filed by his predecessor.
Rule 4(2) of Order XXII, CPC prescribes that the party substituted
may make any defence appropriate to his character as legal
representative of deceased defendant. In Niranjan Sahu vs- Gouri
Sahu and others, 2016 (Sup-II) OLR 245, this court have stated as
follows;
"10. From the decisions cited (supra), it is pellucid that
sub-rule (2) of Rule 4 of Order 22 authorizes the legal
representative of a deceased defendant to file an
additional written statement raising all pleas which the
deceased-defendant had or could have raised except
those which were personal to the deceased-defendant or
respondent. If the legal representative has an independent
right, title and interest over the property, then he has to
get himself impleaded in the suit as a party defendant
and set up his own independent right, title and interest or
challenge the decree that may be passed in the suit. He
cannot take contrary plea diametrically opposite to the
deceased-defendant. The rights which the dead man can
no longer own or exercise in propria persona, and the
obligations which he can no longer in propria persona
fulfil, he owns, exercises, and fulfils in the person of a
living substitute. To this extent, it may be said that the
legal personality of a man survives his natural
personality, until his obligations being duly performed,
and his property duly disposed of, his representation
among the living is no longer called for. When a party to
Location: High Court of Orissa, Cuttack
a suit dies and his legal representatives are substituted,
the rights and liabilities of the original party have to be
considered, but not those of legal representatives. It is
not permissible on the part of the legal representative to
make a prayer to ignore the written statement filed by the
deceased-defendant and accept his written statement,
which is a complete departure from the written statement
filed by defendant no.2."
11. In the instant case, as stated earlier the previous order dated
22nd December 2021 of the Trial Court, wherein the memo of
Defendants No.14(a) was accepted to permit him to adopt the
written statement filed by other Defendants, was never challenged
by any of the party till date and to say specifically, in the present
challenge also, the Plaintiffs did not question the veracity of said
order of the Trial Court dated 22nd December 2021. Therefore, the
order of the Trial Court dated 22nd December 2021 remaining
unchallenged till date gives the right in favour of erstwhile
Defendant No.14(a) to have his W.S. by way of adoption to the W.S.
of other Defendants Viz. Defendants No.8(b), 11, 12, 15 and 16(b).
Therefore, present substituted Defendants No. 14(a)(i) to 14(a)(iii)
have accrued their right of their defence as per the written statement
accepted on the part of deceased Defendant No.14(a). The approach
of Defendants No. 14(a)(i) to 14(a)(iii) to file fresh written
statement, even if the same is stated to be similar as to the earlier
Location: High Court of Orissa, Cuttack
written statement filed by other Defendants and adopted by deceased
Defendant No.14(a) cannot be treated as valid at this stage since the
substituted Defendants have their right and interest limited to the
estate of deceased defendant. Once the deceased Defendant had
presented his written statement, there is no necessity on the part of
the substituted Defendants being the LRs to take a different stand.
Though it is submitted that the present written statement filed by
said substituted Defendants is similar and copy of the earlier written
statement, then there is no need of filing further written statement on
their part once the written statement on behalf of deceased
Defendant No.14(a) was accepted by the Court. So the written
statement filed by Defendants No. 14(a)(i) to 14(a)(iii) cannot be
accepted at this stage. As such, the direction of the Trial Court to
accept the fresh written statement filed on behalf of Defendants No.
14(a)(i) to 14(a)(iii) is set aside and the right of pleading of these
Defendants should be within the limits of the pleadings filed by
deceased Defendant No.14(a), i.e. as adopted by him in terms of
order dated 22nd December 2021 of the Trial Court.
12. With such observation, it would be not unworthy to say here
that since the suit is a year old one, the Trial Court should do well to
Location: High Court of Orissa, Cuttack
dispose of the same expeditiously and the parties are directed to
cooperate for the same.
13. The CMP is disposed of accordingly.
(B.P. Routray)
Judge
S.Das/Sr.Steno
