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2016 Supreme(Ori) 993
IN THE HIGH COURT OF ORISSA: CUTTACK
Dr. A.K.RATH, J.
W.P.(C) No.6917 of 2010
(Date of Judgment : 15.02.2016)
In the matter of an application under Article 227 of the Constitution of India.
Niranjan Sahu … Petitioner
Versus
Gauri Sahu and others … Opp. parties
For Petitioner:Mr.A.K.Tripathy, Advocate
For Opp. parties :Mr.L.Samantray, Advocate
(For O.Ps.1,3,4,5 & 6)
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 22 Rule 4 (2) - It authorises the legal representative of a deceased defendant to file an additional written statement raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent - If the legal representative has an independent right, title and interest over the property, then he has to get himself impleaded in the suit as a party defendant and set up his own independent right, title and interest or challenge the decree that may be passed in the suit - He cannot take contrary plea diametrically opposite to the deceased- defendant.
The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, it may be said that the legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. When a party to a suit dies and his legal representatives are substituted, the rights and liabilities of the original party have to be considered, but not those of legal representatives. It is not permissible on the part of the legal representative to make a prayer to ignore the written statement filed by the deceased defendant and accept his written statement, which is a complete departure from the written statement filed by defendant no.2.
2. CIVIL PROCEDURE CODE, 1908 - Order 8 Rule 9, Order 22 Rule 4 - Order 22 Rule 4 and Order 8 Rule 9, CPC operate in different field - Order 22 Rule 4 (2), CPC provides any person so made a party may make any defence appropriate to his character as legal representative of the deceased-defendant whereas Order 8 Rule 9, CPC is a general provision with respect to the right of the defendant to file subsequent pleadings - Said provision cannot be pressed into service that the person made as a party can make any defence or take a contrary stand to that of the deceased-defendant - Plea of substituted legal representative is confined to the pleadings of the deceased-defendant.
JUDGMENT
Dr.A.K.RATH, J. - Assailing the order dated 10.3.2010 passed by the learned Civil Judge (Sr. Division), Aska in C.S.No.26 of 2007, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial Court rejected the application of defendant no.2 (e) under Order 8 Rule 9 C.P.C to accept the additional written statement.
2. Bereft of unnecessary details, the short facts of the case are that opposite party no.1 as plaintiff filed C.S.No.26 of 2007 in the Court of the learned Civil Judge (Sr. Division), Aska impleading opposite party no.2 and Purushottam Sahu, the predecessor-in-interest of the petitioner and opposite parties 3 to 6 as defendants for declaration of title and permanent injunction. Pursuant to issuance of summons, defendant no.2 entered appearance and filed written statement supporting the stand of the petitioner. While the matter stood thus, he died on 21.3.2009. Thereafter, the petitioner and opposite parties 3 to 6 were substituted in his place. The petitioner, who is defendant no.2 (e), filed an application to accept the additional written statement contending, inter alia, that defendant no.2 is the father of the plaintiff. In collusion with defendant no.2, plaintiff had filed the suit to grab the joint family property standing in the name of defendant no.2 without making him as a party to the suit. In the said suit, defendant no.2 filed written statement supporting the stand of the plaintiff. After the death of defendant no.2, he was substituted and filed a separate written statement to safeguard the interest of the suit property. With this factual scenario, a prayer is made to accept the written statement. The plaintiff filed a counter to the same. The learned trial Court came to hold that in the written statement, original defendant no.2 supported the case of the plaintiff stating therein that the suit properties have been purchased by him through different sale deeds from different persons out of his own income and to press his legal necessity, he alienated the land to the plaintiff by means of a registered sale deed and thereafter delivered possession. But then defendant no.2 (e) in his written statement has taken a totally contrary plea and stated that the suit properties are not self-acquired properties of the deceased-defendant no.2. The defendant no.2 (e) wants to file a separate written statement totally ignoring the written statement filed by the deceased defendant no.2, who is a complete departure from the written statement filed by the deceased-defendant no.2. Held so, the learned trial Court rejected the application.
3. Mr. Tripathy, learned counsel for the petitioner submitted that when the defendant died and in his place the present petitioner has been substituted, it is open to the petitioner to file a written statement and take any defence under Order 22 Rule 4 (2) of C.P.C. He further submitted that under Order 8 Rule 9 C.P.C. the defendant can also file additional written statement with leave of the Court. He relied on a decision of the apex Court in the case of Sumtibai and others Vrs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj) through Mankanwar (Smt) W/o. Parasmal Chordia (dead) and others, (2007) 10 SCC 82 as well as a decision of the Delhi High Court in the case of Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur and others, AIR 1992 Delhi 162.
4. Per contra, Mr.Samantray, learned counsel for the opposite parties 1, 3, 4, 5 and 6, contended that when the original defendant files written statement and dies, the legal heirs can also file written statement appropriate to his character as legal representative of the deceased-defendant. It is not permissible on the part of the substituted defendant to file written statement, which is contra distinction to the written statement filed by the original defendant.
5. To appreciate the rival contentions made at the Bar, it is apt to quote Order 8 Rule 9 C.P.C. and Order 2
