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. "

( 3 ) HE also urged that the petitioner/legal representative of the deceased defendant is entitled to file written statement. In this context, he has drawn my attention towards an authority by the Apex Court in Bal Kishan v. Om prakash and another, AIR 1986 SC 1952, wherein it was held:-"the said sub-rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant (defendant) had or could have raised except those which were personal to the deceased defendant or respondent. In the instant case Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chatterjee v. Sri Kishan, (1973) 1 SCR 850: (AIR 1972 SC 2526 ). The relevant part of that decision at Page 854 (of SCR): (at pp. 2528-29 of AIR) reads thus:-"under sub-clause (ii) of Rule 4 of Order 22, Civil Procedure Code, any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the Court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title. "

( 4 ) FOR the following reasons, I locate no substance in these submissions. The law laid down in the above said authority does not dovetail with the facts of the present case. The facts of the present case are altogether different. It must be borne in mind that in this case the deceased defendant was proceeded against ex parte. He was deprived of the right to file the written statement. The petitioner has stepped into his shoes. The petitioner is not authorised to alter or amend that situation. The proceedings are to start from that stage where the same were left by his father. Merely because he is legal