Back
2019 Supreme(All) 863
IN THE HIGH COURT OF ALLAHABAD
Manoj Kumar Gupta, J.
Prabha Devi and Others – Appellants
Versus
Brijeswar Singh and Others – Respondents
Matters Under Article 227 No. 5629 of 2019
Decided On : 26-07-2019
Surya Bhan Dubey, Adv., Ram Sajiwan Mishra, Adv.
Headnote:
CPC – Order 8, 22 – Rule 4 (2), 9, 6-C – Article 227 – Constitution of India – Petition is directed against the order passed by Additional District Judge, revision has been allowed and the order of the trial court permitting petitioners to file counter claim along with additional written statement has been set aside, reivisional court has directed the trial court to decide application 166-C afresh–husband of petitioner no.1 and father of petitioners no.2 to 4 was defendant no.4 in Original Suit, It is not in dispute that he filed written statement, He died during pendency of suit, petitioners were substituted in his place by order petitioners filed application 166-C for permission to file additional written statement along with counter claim, trial court allowed the application for taking on record additional written statement along with counter claim by order observing that petitioners, who came on record by way of substitution, did not have the opportunity to file counter claim earlier, application deserves to be allowed –Held, Because petitioners were not party to suit earlier and therefore, after their substitution, they got opportunity to file counter claim for first time with their additional written statement and, it has to be permitted, is based on complete misunderstanding of the scheme revisional court has rightly remitted the matter back to trial court to consider whether there exists any justifiable ground on record to warrant accepting counter claim at such a delayed stage, trial court would also be required to ascertain whether the counter claim is in respect of cause of action accruing before the original defendant had delivered his defense, It shall also have to consider as to whether permitting the petitioners to raise counter claim in the instant suit would embarrass the trial thereof at this stage or if it should exercise its power so as to direct petitioners to raise their claim by way of separate suit –Court finds no illegality in the impugned order Moreover, it is only remand order where under the trial court will now decide the application afresh having regard to observations made by the revisional court – Petition is dismissed. (Para’s 7, 8, 10)
Facts of the case:
Petition is directed against the order passed by Additional District Judge, revision has been allowed and the order of the trial court permitting petitioners to file counter claim along with additional written statement has been set aside, reivisional court has directed the trial court to decide application 166-C afresh – husband of petitioner no.1 and father of petitioners no.2 to 4 was defendant no.4 in Original Suit, It is not in dispute that he filed written statement He died during pendency of suit, petitioners were substituted in his place by order petitioners filed application 166-C for permission to file additional written statement along with counter claim, trial court allowed the application for taking on record additional written statement along with counter claim by order observing that petitioners, who came on record by way of substitution, did not have the opportunity to file counter claim earlier, application deserves to be allowed.
Findings of the court:
Because petitioners were not party to the suit earlier and therefore, after their substitution, they got opportunity to file counter claim for first time with their additional written statement and, it has to be permitted, is based on complete misunderstanding of the scheme revisional court has rightly remitted the matter back to trial court to consider whether there exists any justifiable ground on record to warrant accepting counter claim at such a delayed stage, trial court would also be required to ascertain whether the counter claim is in respect of cause of action accruing before the original defendant had delivered his defense, It shall also have to consider as to whether permitting the petitioners to raise counter claim in the instant suit would embarrass the trial thereof at this stage or if it should exercise its power so as to direct petitioners to raise their claim by way of separate suit –Court finds no illegality in the impugned order Moreover, it is only remand order where under the trial court will now decide the application afresh having regard to observations made by the revisional court.
Result: Petition is dismissed
JUDGMENT :
Manoj Kumar Gupta, J.
The instant petition is directed against the order dated 1.5.2019 passed by Additional District Judge, Court No.7, Varanasi in Civil Revision No.24 of 2018. The revision has been allowed and the order of the trial court dated 10.1.2018, permitting the petitioners to file counter claim along with additional written statement has been set aside. The reivisional court has directed the trial court to decide the application 166-C afresh.
2. The husband of petitioner no.1 and father of petitioners no.2 to 4 was defendant no.4 in Original Suit No. 276 of 2008. It is not in dispute that he filed a written statement on 6.4.2009. He died on 8.4.2013 during pendency of the suit. The petitioners were substituted in his place by order dated 11.4.2014. After their substitution, the petitioners filed application 166-C for permission to file additional written statement alongwith counter claim. The trial court allowed the application for taking on record additional written statement along with counter claim by order dated 10.1.2018 observing that the petitioners, who came on record by way of substitution, did not have the opportunity to file counter claim earlier, therefore, the application deserves to be allowed.
3. The revisional court, not satisfied with the view taken by the trial court, has set aside the order of the trial court. It has observed that the counter claim was not filed by the father of the petitioners along with the written statement filed by him. The revisional court has also noted that there had been a delay of more than five years in filing counter claim without there being any explanation in that regard. It has also observed that while filing additional written statement, the legal heirs do not automatically get right to file counter claim. The petitioners have sought to set up an entirely different case, withdrawn various admissions and have claimed relief which is inconsistent with the case set up in the written statement filed by the original defendant, which is not permissible.
4. Counsel for the petitioners submitted that the petitioners were compelled to file counter claim because of change of circumstances. It is for the said reason that they have to take a different stand than what was taken by their predecessor.
Indisputably, the predecessor of the petitioners had filed a written statement without setting up any counter claim therein. The petitioners, after the death of their predecessor, have stepped into his shoes. They got the right to file written statement under Order 22 Rule 4 (2) CPC. They could also have filed additional written statement after obtaining leave from the court under Order 8 Rule 9 C.P.C. However, it is well settled that the legal heirs, while filing additional written statement, cannot go beyond the case set up in the original written statement by the person in whose place they have been substituted.
5. In Vidyawati Vs. Man Mohan and others, AIR 1995 SC 1653, in a suit for possession of suit property after the death of one of the defendants (Brij Mohan Kapoor), his legal representative sought to file additional written statement claiming title and interest in the suit property under a Will executed by one Smt. Champawati. The trial court did not permit the same. So did the revisional court and the High Court. The issue that arose for consideration before the Supreme Court was whether the legal representative of the deceased defendant had to confine herself to the defence appropriate to her character as legal representative or she could raise a plea personal to her. In the above context, the Supreme Court has observed as under:-
4. This Court in Bal Kishan vs. Om Parkash & Anr, AIR 1986 SC 1952 has said thus:
"The sub-rule (2) of Rule of Order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which we
