Legal representatives must adhere to deceased parties' original pleadings; contradictory additional statements are impermissible unless properly amended or requested.

JUDGMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 17th October, 2022 (Annexure-5) passed by learned Senior Civil Judge, Nabarangpur in C.S. No.17 of 2013 is under challenge in this CMP, whereby written statement filed by the legal heirs of deceased Defendant No.1 has been accepted.

3. Mr. Tripathy, learned counsel submits that the Petitioner as Plaintiff filed a suit for declaration that the Registered Sale Deed dated 16th January, 1969 is null and void, declaration that the ROR vide Khata No.56 of Bangapalli Mouza in the name of the Defendants is also null and void and also to declare right, title and interest of the Plaintiffs over the suit land as well as for permanent injunction. During pendency of the suit, Defendant No.1 died and was substituted by his legal heirs, namely, Opposite Party Nos. 1 to 4. Before death, Defendants had filed a written statement. But, the legal heirs of Defendant No.1 on being substituted filed another written statement taking independent stand describing a different story. Hence, the Plaintiff-Petitioner filed an application on 17th January, 2019 with a prayer not to accept the said written statement. Learned trial Court without considering the petition in its proper perspective, dismissed the same and accepted the written statement filed by the legal heirs of Defendant No.1 subject to payment of cost of Rs.300/-.

4. While discussing the case of the parties, learned trial Court has categorically observed as under:

“On perusal of the concerned additional written statement filed on dated 27.11.2018 it is appeared that the legal representatives of the deceased defendants have pleaded a new fact that, Ghenua had three sons namely, Dasmu, Narasing and Birasingh whereas Saradu was the only son of Birasingh contrary to the pleading of the plaintiff that Saradu was the only son of Dasmu and it was also not specifically denied by the deceased defendants in their earlier pleadings.”

4.1 He, therefore, submits that the additional written statement filed by the substituted Defendants with an independent stand, which was not available in the original written statement, should not have been accepted in view of the provision under Order XXII Rule 4(2) CPC. In support of his submission, Mr. Tripathy, learned counsel for the Petitioner relied upon the case of Niranjan Sahu –v- Gauri Sahu and others , reported in 2016 (Supp.-II) OLR 245, wherein this Court has held as under:

“10. From the decisions cited (supra), it is pellucid that sub-rule (2) of Rule 4 of Order 22 authorizes 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 longe