J. M. MALIK, J.

( 1 ) THE controversy in the instant case pivots around the question, whether the legal representative of a deceased defendant, who is already proceeded against ex parte and has not filed the written statement, is entitled to file written statement. The trial court vide its order dated 17. 08. 2007 answered this question in negative. Aggrieved by that order the instant petition under article 227 of the Constitution of India has been filed.

( 2 ) I have heard the counsel for the parties. Counsel for the respondent made two submissions. Firstly, he drew my attention towards Rule 4 appended to Order XXII of CPC. Sub clauses (1) and (2) run as follows:-

" (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. "

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