Legal representatives can raise any defence appropriate to their character as legal representatives of the deceased defendant as a matter of right. The court has no discretion to stop or debar them from doing so.

( 1 ) A question pristinely legal has given rise to this order. As the facts are not of much conse. cosquence, only a brief resume would suffice.

( 2 ) OIL February 7, 1982 Syed Murtaza Ali Khan. who was one of the defendants, died and by order dated July 30. 1982 his legal representatives were brought on the record who filed their written statement in the Registry which was placed on the record of the suit. The matter rested there for years and came to the force only while final arguments for disposal of the main suit were being heard and that too when Mr. B. D. Sharma representing the defendant referred to the pleas taken therein. It was time for Mr. R. K. P. Shankardass, the learned counsel for the plaintiff, to register his protest. His objection was that the legal representatives had at no stage sought the leave of The court, nor the court had granted any, to file additional written statement and consequently the filing of the written statement surreptitiously in the Registry would not suffice. He, in support relied upon Order 8 Rule 9 of the Code of Civil " Procedure. Needless to say, Mr. Sharma found the objection unpalatable. As per him Order 8 rule 9 would be inapplicable. He drew my attention to Order 22 rule 4 and argued that under the said provision the legal representatives had the right to put up the defence available to them and that is what they had done.

( 3 ) WHAT, then, is the legal position ?

( 4 ) LET me, first have a peep at the provisions. First. Order 8 rule 9. It says : "no pleading subsequent to the written statement of a defendant other than by way of defence to a setoff (or counter-claim) shall be presented excepted by the leave of the Court and upon such terms as the Courts thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. " And, now the relevant portion of sub-rule 2 of Rule 4 of Order 22. It reads :

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

( 5 ) DOES Order 8 rule 9 control Order 22 rule 4? Is it that the legal representaitve brought on the record must necessarily first apply under order 8 rule 9 and seek permission of the court before raising a defence uppropriate to his character as legal representative of the deceased defendant ?

( 6 ) I feel that Order 8 rule 9 read in conjunction with Order 6 rule 5 lays down a rule of pleading and deals with the situations where, for example, a party wants to make a further pleading after the written statement has been filed on account of his having failed to raise certain pleas in the original written statement, or where a minor defendant on attaining majority wants to file fresh written statement or where the defendant having not appeared previously and having been proceeded against ex parte, joins the proceedings and seeks to file written statement. The tenor of this provision show that a party seeking to file additional written statement has necesarily to show to the court the circunistances us to why he failed to raise the picas in the original written statement Pauchanakesa J. tells us in Naryan v. Delai (AIR 1958 Mad. 383) as to how the matter is proceeded with under this provision. He says : "if the party wants to file an additional written statement. he has to file a petition staling the reason why he failed to say these things in the original written statement, and what excuse there is for allowing him to file an additional written statement at that stage. Then the other side has to be given an opportunity to oppose the petition and extend that such additional written statement should not be entertained at that stage. Then the Court has to give its decision as to whether the addidtional written statement is to be admitted or not. "

( 7 ) IN short thus, the party applying under Order 8 rule 9 has to provide cogent reasons for permi