1. Heard Mr. S. Ali, the learned counsel for the petitioner and Mr. M. Choudhury, the learned Senior Counsel assisted by Mr. M. Mahanta, appearing for the respondent.

2. The challenge in the present application under Article 227 of the Constitution of India read with section 151 of the Civil Procedure Code (hereinafter referred to as “the Code”), is the order dated 14.02.2017 passed by the learned Munsiff No. 2, Kamrup (Metropolitan), Guwahati, in Title Suit No. 123/2009, by which the prayer made by the petitioners to submit written statement and to allow them to adduce evidence along with fresh exhibits was rejected.

3. Owing to the nature of challenge, I do not deem it fit to burden this judgment with the pleadings of the parties. It would be sufficient to state that the petitioners herein are substituted legal representatives of the defendant No. 1, namely, Md. Faizur Rahman, who had died on 03.02.2016. During his life time, Ahidur Rahman, who the petitioner No. 3 herein had submitted his evidence-on-affidavit as the supporting witness on behalf of the defendant No. 1.

4. After the death of the defendant No. 1, the petitioners were not given any opportunity by the learned trial court to file their written statement. Hence, by filing petition No. 3425 dated 03.12.2016, the petitioners prayed for allowing them to file their written statement and then to adduce their evidence. It was further prayed that the petitioner No. 3 herein i.e. defendant No. 1(c) may be permitted to withdraw his evidence on affidavit with liberty to file the same afresh along with the exhibits. The respondent/ plaintiff filed his written objection to the said petition.

5. The matter arising out of the said petition dated 03.12.2016 was heard by the learned trial court and by order dated 14.02.2017, the learned trial court rejected the said petition. While rejecting the prayers made by the petitioners, the learned trial court observed that by order dated 26.04.2016, the defendants No. 1(a), 1(b) and 1(c) were substituted in place of the deceased defendant and thereafter, steps were taken in respect of the substituted defendant No. 1(d) and 1(e) and since 04.10.2016, the case was proceeding ex-parte against the defendants No. 1(d) and 1(e). But, the said defendants did not make any prayer to file their written statement or evidence. On the said grounds, the plea of the petitioners that they did not get any opportunity to file written statement was not sustainable, but they were given enough opportunity to submit before the Court or to submit written statement, but they did not do so and accordingly, the suit proceeded for cross examination of official witnesses on 22.11.2016. The learned trial court held that the Civil Procedure Code or in the Evidence Act were silent about the withdrawal of evidence-on- affidavit filed by any party at their own convenience and, as such, the prayer of defendant No. 1(c) to withdraw his evidence was rejected and the evidence-on- affidavit filed by the original defendant was expunged as he had died. Thus, the petition was rejected.

6. The learned counsel for the petitioners has submitted that as per the provisions of Order XXII Rule 4(2), any person made a party is entitled to make any defence appropriate to his legal character as legal representative of the deceased defendant. Hence, the impugned order was not sustainable both on facts and in law. It was submitted that in the written objection filed by the respondent/plaintiff before the learned trial court as well as in the impugned order, there is no reference to any order by virtue of which any chance was given to the petitioners to submit their written statement. Thus, there was a incorrect finding in the said impugned order to the effect that the petitioners were given enough opportunity to submit before the Court or to submit written statement, but they did not do so and accordingly, the suit proceeded for cross examination of official witnesses on 22