The respondent herein filed O.S. No. 66 of 1990 against Sri Shankarappa, for decree of specific performance of an agreement of sale. The said Shankarappa entered appearance before the Trial Court and filed written statement inter alia denying the execution of agreement of sale in favour of the respondent. The said O.S. No. 66 of 1990 came to be decreed vide judgment dated 9-8-1996. After passing of the decree in O.S. No. 66 of 1990, the defendant Shankarappa died. The petitioners herein who are the legal representatives of the deceased Shankarappa filed an appeal in R.A. No. 172 of 1988 and the same came to be allowed and the matter was remanded to the Trial Court for fresh disposal in accordance with law. After remand, the respondent adduced evidence and when the matter was set down for arguments, the petitioners filed an application under Order 22, Rule 4 read with Section 151 of the Civil Procedure Code, 1908, seeking permission of the Court to file additional written statement. The Trial Court after hearing both the parties passed the impugned order rejecting the application filed by the petitioners. Hence, this writ petition.

2. Sri Veeresh B. Patil, learned Counsel appearing for the petitioners contend that as legal representatives of deceased Shankarappa the petitioners are bound by the judgment and decree passed in O.S. No. 66 of 1990. Therefore, the petitioners as legal representatives are entitled to file additional written statement. He further contends that the written statement filed by the legal representatives will not take away the admission made by their father Shankarappa which enure to the benefit of the respondent. The Trial Court without considering this aspect of the matter committed an error passing the impugned order rejecting the application filed by the petitioners.

3. Per contra, Sri S.R. Hegde, learned Counsel for the respondent contend that the petitioners are not entitled for taking an inconsistent plea than what has been taken by their father Shankarappa before the Trial Court. The written statement filed by the petitioners discloses that they have pleaded independent right in the schedule property and as legal representatives they are not entitled to take such a plea. Reliance is placed on the following decisions.-

Gajraj v Sudha and Others1; Vidyawati v Man Mohan and Others2 and Bal Kishan v Om Prakash and Another3.

4. Heard arguments on both sides and perused the entire writ papers.

5. It is necessary at this stage to notice the relevant provision i.e., Order 22, Rule 4(2) of the CPC and the same reads as under:

“4. Procedure in case of death of one of several defendants or of sole defendant.-(1) x x x x x x

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) x x x x x x

(4) x x x x x x

(5) x x x x x x”.

6. The Supreme Court while interpreting the scope of sub-rule (2) of Rule 4 of Order 22 of the CPC in the case of Vidyawati, held as under:

“It is seen that petitioners' claim of right, title and interest entirely rest 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-terminus with his demise. Whether the petitioner has independent right, title and interest de hors 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 become 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