Legal heirs of a deceased defendant have a vested right to file a written statement appropriate to their character as legal representatives of the deceased defendant, as provided under Order XXII Rule 4(2) of the CPC.

JUDGMENT :

A.K. Menon, J.

In a matter that is listed for directions, an application was moved on behalf of defendant nos.5(a), 5(b) and 5(c) seeking leave to file written statement. The application is vehemently opposed by the plaintiffs. Defendant nos.5(a), 5(b) and 5(c) are legal heirs of original defendant no.5. The suit seeks recovery of a sum of Rs.2,02,02,220/-. It is a dispute between two partnership firms. In the suit, as originally filed, there were six defendants. Defendant no.4 was a partnership firm, of which defendant nos.5 and 6 were said to be the partners. Defendant no.6 was already impleaded as defendant no.2. Defendant no.5 died on 26th May 2018, leaving behind defendant nos.2, 5(a), 5(b) and 5(c) as the only legal heirs. On 17th July 2019, the plaintiffs sought amendment to the plaint to implead the said legal heirs. The amendment was carried out on 30th July 2019. The aforesaid heirs sought leave to file written statement, which was opposed on behalf of the plaintiffs on the ground that vide an order dated 22nd March 2019, the suit has been directed to proceed ex-parte against defendant no.5.

2. The record indicates that the suit was listed for directions on 26th September 2017. It was submitted that defendant no.5 was served personally on 6th September 2017, but the record also indicates that there is a letter received from the Sheriff of Mumbai dated 12th December 2017, which indicates that summons and plaint sent to defendant no.5 had been returned undelivered. The affidavit-of-service is dated 18th December 2017. Defendant no.5 entered appearance on that day, although the vakalatnama is dated 18th August 2017. It was submitted on behalf of the plaintiffs that time to file written statement on behalf of defendant no.5 expired on 6th October 2017, by virtue of provisions of Order VIII Rule 1 of CPC; however, being a commercial suit, the last date of filing written statement was determined as 4th January 2018, since the 120th day expired on that day. Defendant no.5 forfeited the right to file written statement as on that date. It transpires that the 5th defendant died on 26th May 2018. On 1st March 2019, the court directed Advocates for defendant no.5 to provide the names of the legal heirs and a copy of the death certificate of defendant no.5. Names of the legal heirs were provided on 16th March 2019 and on 22nd March 2019. When the matter came up for directions, the plaintiffs contended that defendant nos.2, 3 and 5 having caused appearance to be entered, filing of vakalatnama would obviate the need for service of writ of summons, since there would be deemed waiver of service of writ of summons. The court disagreed and observed that there was nothing to indicate that the said defendants' Advocates had waived service of writ of summons and unless there was an undertaking of Advocates to accept service of summons and to file a vakalatnama on behalf of the defendants.

3. In the meantime, this court in the case of Axis Bank Vs. Smt. Mira Gehani, 2019 SCC OnLineBom 358 held that the period of 120 days for filing the written statement would commence from the date of service of writ of summons and not on the date when the defendant first entered appearance. In that view of the matter, it was contended on behalf of the plaintiffs that the time for filing written statement having expired and the defendant no.5 having been served with the writ of summons prior to her demise, the matter could proceed exparte. On 22nd March 2019, the court directed that the suit as against defendant nos.1, 3, 4 and 5 should proceed as undefended suit. The matter came to be adjourned. On 16th April 2019, disputes were referred to mediation. Defendant no.5 had by then expired. The heirs of defendant no.5 may have participated; however, on 10th July 2019, the court recorded absence of the heirs of defendant no.5 during mediation and directed that the heirs of defendant no.5 shall be involved in further meetings. Meetings were scheduled to