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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
Sushil Kumar Harlalka S/o Late Tansukhrai Harlalka – Petitioner
Versus
Soneswari Bey W/o Late Hiren Chandra Bey – Respondent
CRP (IO) No. 164 of 2023
Decided On : 13-03-2024
Article 227 - Challenge to rejection of written statement-cum-counter claim - Order XXII Rule 4 - Summary of the acts and sections referenced: Order XXII Rule 4(2), Order XXII Rule 4(4), Order XXII Rule 9(1), Mst. Bolo vs. Mst. Koklan and Others, AIR 1930 PC 270, Smt. Phool Rani and Others v. Shri Naubat Rai Ahluwalia, (1973) 1 SCC 688, State of Punjab and Others vs. Gurdev Singh, (1991) 4 SCC 1, Mata Prasad Mathur vs. Jwala Prasad Mathur, (2013) 14 SCC 722, T. Gnanavel vs. T.S. Kanagraj and Others, (2009) 14 SCC 294, Jagdish Chander Chatterjee and Others vs. Shri Sri Kishan and Another, (1972) 2 SCC 461
Fact of the Case:
The Plaintiffs filed a suit seeking declaration of their right, title and interest over certain land. After the death of Defendant No. 1, the Plaintiffs filed applications for condonation of delay, setting aside the abatement, and substitution of legal representatives. The Defendant No. 1(A) filed a written statement-cum-counter claim, which the Plaintiffs sought to dismiss.
Finding of the Court:
The Court found that the legal representatives have a right to state their defense and upheld the impugned order rejecting the petition to dismiss the written statement-cum-counter claim. The present proceedings were dismissed, and the further proceedings of the suit were directed to continue in the Trial Court.
Issues: Challenge to rejection of written statement-cum-counter claim, interpretation of Order XXII Rule 4, legal rights of legal representatives, and the effect of delay and abatement on the suit.
Ratio Decidendi: The right to sue must survive against the legal representatives of the deceased for the suit to proceed. Legal representatives have the right to state their defense, and the Court may exempt the plaintiff from the necessity of substituting legal representatives in certain cases.
Final Decision: The present proceedings were dismissed, and the parties were directed to appear before the Trial Court for further proceedings.
JUDGMENT :
DEVASHIS BARUAH, J.
1. This is an application filed under Article 227 of the Constitution challenging the order dated 03.10.2019 passed in Title Suit No. 157/2014 by the learned Civil Judge No. 1 whereby the petition filed bearing Petition No. 5455/2018 for rejection/dismissal of the written statement-cum-counter claim filed by the Defendant No. 1(A) was rejected.
2. The record reveals that the Plaintiffs herein have filed the suit being Title Suit No. 157/2014 seeking declaration of their right, title and interest over the schedule plots of land as described in the plaint; for confirmation of possession of the Plaintiffs over the schedule land; for permanent injunction and in the alternative, if the Plaintiffs are dispossessed during the pendency of the suit, for recovery of possession. The said suit upon being filed, the Defendants entered appearance on 29.05.2014. On 18.09.2014, taking into account that the written statement was not filed by the defendants even after the expiry of 90 days, the issue of filing of written statement by the defendants was closed. Thereupon, the suit proceeded.
3. The Defendant No. 1 expired on 02.07.2016. Pursuant thereto, three applications were filed by the Plaintiffs. The first application pertains to condonation of delay of 54 days, the second application pertains to setting aside the abatement and the third application pertains to substitution of the legal representatives. The learned Trial Court vide order dated 05.08.2017 condoned the delay, set aside the abatement and substituted the legal representatives of the Defendant No. 1. Thereupon, summons were issued vide an order dated 18.09.2017.
4. The substituted defendants more particularly the Defendant No. 1(A) filed a written statement-cum-counter claim on 13.06.2018. Thereupon, after a passage of 6 (six) months, on 17.12.2018, an application was filed by the Plaintiffs for dismissal of the written statement-cum-counter claim filed by the Defendant No. 1(A). The said petition was numbered as Petition No. 5455/2018. To the said application, the Defendant No. 1(A) had filed a written objection. Subsequent thereto, after hearing, the order dated 03.10.2019, which has been impugned in the instant proceedings, was passed. Being aggrieved, the present proceedings have been initiated.
5. This Court finds it very pertinent at this stage to observe that pursuant to the order passed for substitution of the legal representatives of the Defendant No. 1, on 11.05.2018, the Defendant No. 1(A) appeared and filed the petition bearing Petition No. 2366/2018 seeking time to file written statement. On that very day, the learned counsel for the Plaintiffs opposed the prayer of the written statement by the Defendant No. 1(A) but the learned Trial Court upon considering the same directed the Defendant No. 1(A) to file the written statement/objection.
6. The record further reveals that on 13.06.2018, the Defendant No. 1(A) had filed the written statement-cum-counter claim. The further orders passed by the learned Trial Court on 24.07.2018 and 27.09.2018 shows that the service upon the Defendant No. 1(ii) was not completed. It was only on 17.12.2018, i.e. the Petition bearing Petition No. 5455/2018 was filed by the Plaintiffs. Pursuant thereto, on 03.10.2019, the impugned order was passed.
7. This Court had duly taken note of the provisions of Order XXII Rule 4 which stipulates the procedure in case of death of one of the several defendants or the sole defendant. In Sub-Rule (2) of Rule 4 of Order XXII, it is mentioned that any person so made a party may make any defence appropriate to his character as a legal representative of the deceased defendant. In terms with Sub-Rule (4) of Rule 4 of Order XXII, the Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who had failed to file written statement or who having filed it, have failed to appear and contest the suit at the he
Legal representatives of deceased parties can seek substitution; amendments to pleadings are permitted to promote effective adjudication and safeguard substantive rights over rigid procedural complia....
The right to sue survives against other defendants when one defendant passes away, and the court has the power to exempt the plaintiff from substituting the legal representatives of non-contesting de....
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
Rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just o....
The main legal point established is that the timely filing of applications under Order XXII Rule 4 and Rule 9 of the CPC is crucial, and delay cannot be condoned without sufficient cause. Negligence ....
The main legal point established in the judgment is the court's power to treat an application under Order 22 Rule 4 of CPC as an application under Order 1 Rule 10 of CPC, allowing for the substitutio....
The main legal point established in the judgment is the discretion of the court to dispense with the necessity of substituting legal representatives of a defendant under Order XXII Rule 4 (4) of CPC,....
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