ORDER

1. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity, propriety and illegality of the order dated 10.9.2018 passed in Civil Suit No. 9B/2015 by the 3rd Civil Judge, Class-II, Sheopur, whereby application filed by the petitioner seeking permission to file written statement under Order 22 rule 4(2) of the Civil Procedure Code has been rejected.

2. The brief facts leading to file this case are that the respondent/plaintiff has filed a civil suit seeking recovery of the amount of Rs.3,13,600/-. The petitioner/defendant filed the written statement denying the plaint averments. In para 4, it was specifically stated that the plaintiff/respondent has filed a suit showing the wrong measurement and himself has demolished the construction and thereafter constructed the shutter before the drain (Nala). During pendency of the suit, the original defendant- Smt. Pushpa Bai expired, as a result, the present petitioner Hukum Chand Garg was impleaded as legal representative of deceased Pushpa Bai. Soon after being impleaded as a legal representative, the petitioner moved an application under Order 22 rule 4(2) of CPC annexing the copy of additional written statement seeking permission to file the same in his defence, which was dismissed by the learned trial Court vide impugned order dated 10.9.2018. Being aggrieved by the aforesaid order, the present petition has been filed.

3. Learned counsel for the petitioner submitted that the moot question involved is that whether the legal representative of the deceased/defendant can file a separate written statement appropriate to his character under Order 22 rule 4(2) of CPC or not?

4. Order 22 rule 4(2) CPC provides as under :-

“any person so made a party may make any defence appropriate to his character, as legal representative of the deceased defendant.”

5. Learned counsel for the petitioner submits that in the light of the aforesaid provisions, the petitioner after being impleaded as legal heir of deceased/defendant- Smt. Pushpa Bai was having right to prefer appropriate defence by filing the additional written statement. The trial Court vide impugned order dated 10.9.2018, rejected the application on the ground that from perusal of the order dated 5.6.2018, it can be seen that the present petitioner was impleaded as the legal representative but from 5.6.2018 to 10.9.2018, the petitioner did not file any written statement but during this period plaintiff's evidence was recorded and the same stood close, therefore, looking to the delay on the part of the petitioner, the written statement cannot be taken on record.

6. Heard the learned counsel for the petitioner.

7. The apex Court in the case of Sumtibai and Others v. Paras Finance Co. Regd. Partnership Firm as reported in (2007) 10 SCC 82 has held as under :

“7. Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co-owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also coowners of the property in dispute. However, we are not expressing any final opinion on the question whether they are Co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial Court to decide. Hence, in our opinion, the Courts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement.

8. Every party in a case has a right to file a written statement. This is in accordance w