Legal representatives of a deceased defendant must disclose independent right to introduce new evidence or defences; merely adopting the predecessor's position limits their actions.

JUDGMENT :

ANIL L. PANSARE, J.

The petitioner - original plaintiff is aggrieved by order dated 14/10/2022 passed below Exh. 118 by the Civil Judge Junior Division, Kuhi, permitting the legal representatives of respondent no.1 – original defendant no.1 (since deceased), to adduce further evidence at the stage of final hearing.

2] Having heard both sides and having gone through the material placed before me, it transpires that the petitioner has filed a suit for declaration, partition, separate possession and permanent injunction against the respondents/defendants of whom original defendant no.1 expired pending suit. Prior to is death, both the parties had led evidence, which includes original defendant no.1. The original defendant no.1 had cross- examined the petitioner – plaintiff’s witnesses. Similarly, the petitioner – plaintiff had cross-examined the respondent – defendants’ witnesses. The suit was then fixed for final argument. The petitioner in fact filed written notes of arguments as well.

3] At such stage, the respondent nos. 1(a) and 1(b) (hereinafter referred to as legal representatives of defendant no.1) filed application seeking permission to adduce evidence as well as to cross-examine the petitioner and other witnesses. As such, they adopted the written statement filed by their father, i.e., original defendant no.1. In that sense, the legal representatives of defendant no.1 did not set up an independent defence.

4] The legal representatives of defendant no.1 filed aforesaid application stating therein that after having been brought on record, they have not applied to allow them to lead evidence and/or to cross-examine the witnesses, who have been examined. They have then pleaded that inadvertently, the previous Counsel failed to cross-examine the petitioner and other witnesses on behalf of legal representatives of defendant no.1 and also did not examine other witnesses to bring on record major and important facts. They have, however, conveniently omitted to disclose the alleged major and important facts.

5] The application was opposed by the petitioner on the ground that original defendant no.1, during his lifetime, has cross-examined the petitioner. He has also adduced evidence. After his death, his legal representatives have stepped into his shoes and have, thus, no independent defence, particularly when they have adopted original defendant no.1’s written statement.

6] The issue involved will have to be examined in above background. The trial Court has allowed the application on the ground that evidence of legal representatives of defendant no.1 is not yet closed and that it is necessary to bring major and important facts on record. The trial Court has placed heavy reliance upon sub-rule (2) of Rule 4 of Order XXII of the Code of Civil Procedure, 1908 (the Code), to permit these legal representatives to cross-examine the witnesses and to lead additional evidence. According to the trial Court, in terms of sub-rule (2) of Rule 4 of Order XXII of the Code, any person so made party to the suit may make any defence appropriate to his character as legal representative of the deceased defendant. Accordingly, allowed the application.

7] The learned Counsel for the petitioner submits that this finding is erroneous inasmuch as the legal representatives, having adopted the written statement of original defendant no.1, have no independent right to put up a new defence. He has referred to the judgment of the Hon’ble Supreme Court in the case of Vidyawati Vs. Man Mohan And Others [(1995) 5 SCC 431] , wherein after quoting facts of the case, the Supreme Court, while dealing with the scope under Order XXII Rule 4 of the Code, has held thus :

“3. …. 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 became available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to g