Rule. Heard finally with consent of learned counsel for the parties.

The challenge in the present writ petition is to the order dated 04/07/2015 passed by the trial Court below Exhibit 179 granting permission to the defendant No.1 (ii) to file his written statement on record.

2. The petitioners are the original plaintiffs who had filed Spl. C.S. No. 38/1995 for partition and separate possession of the suit property. In the plaint it was their case that they had legal right to the property in question. In the suit Amarkanth s/o Pandurang Wath was shown as defendant No.1 while Pandurang Wath was arrayed as defendant No.2. During pendency of the suit, the defendant No.1 expired on 19/09/2014 after which his widow and son were brought on record as defendant Nos.1 (i) and (ii). The defendant No.1 (ii) filed an application below Exhibit179 seeking permission to file his written statement on record. It was stated that after service of the notice, the case was fixed on 23/04/2015 for filing the written statement. It was then adjourned to 29/04/2015. There was some confusion with regard to the adjourned date and hence the written statement could not be filed on said date. It was further stated that the written statement was prepared on 30/04/2015 and was sought to be placed on record on 04/07/2015. This application was opposed by the plaintiffs. The trial Court by the impugned order allowed the said application.

3. Shri V.B. Gawali, the learned counsel for the petitioners submitted that the impugned order passed by the trial Court was without assigning any reasons. He submitted that the written statement sought to be filed by the defendant No.1 (ii) had raised the pleas which were beyond the pleas raised in the written statement that was initially filed by the defendant No.1. He submitted that the defendant No.1 (ii) having been impleaded as the legal heir of the defendant No.1, he could not be permitted to take an independent plea which was not taken in the original written statement. He then submitted that the said legal representative had also sought to file his counterclaim in his independent capacity. Thus according to him, the impugned order permitting the written statement to be filed was liable to be set aside. He placed reliance on the judgments of Honourable Supreme Court in 1989 (1) SCC 147 Annupam Pruthi vs. Rajen Bal, (1999) 3 SCC 109 Gajraj vs. Sudha and Ors. and judgment of learned Single Judge in 2008 (3) Mh.L.J. 297 Manguesh Rajaram Wagle v. Suresh D. Naik.

4. Shri A.K. Neware, the learned counsel for the respondents supported the impugned order. According to him, the stand taken by the defendant No.1 (ii) was based on the Will executed by Pandurang dated 26/05/1994. As per the said Will, the legal heirs of Amarkanth had become the owners of the suit property. He then submitted that the trial Court rightly allowed the application moved by the legal heirs for filing the written statement after finding that there was some confusion with regard to the date on which the written statement was to be filed.

5. I have heard the respective counsel for the parties at length. The defendant No.1 had filed his written statement on record on 22/04/1996. It is not in dispute that the defendant No.1 (ii) has been brought on record in the capacity of legal heir of the original defendant No.1. The impleadment of the defendant No.1 (ii) is under provisions of Order XXII Rule 4 of Code of Civil Procedure, 1908 (for short, the Code). As per provisions of Order XXII Rule 4(2) of the Code, the defence appropriate to the character of defendant No.1 (ii) as legal representative of deceased defendant No.1 was permissible to the taken. The impleadment being as legal heir of the deceased defendant No.1, the legal representative would merely step into the shoes of said defendant. A plea contrary to the one taken by the deceased defendant as well as a plea personal to the legal representative could not be permitted to be taken by him by virtue