judgment?

decree dated 23.10.2019. Defendants No. 2 to 4 i.e. S/Shri Ram Dutt, Devi Ram and Babu Ram assailed the decree dated 23.10.2019 in appeal under Section 96 of the Code of Civil Procedure (for short, ‘the Code’), which was registered as Civil Appeal No. 16-N/13 of 2023 in the Court of learned Additional District Judge, Sirmour at Nahan. On the death of plaintiff Mati Ram alias Moti Ram his legal representatives (respondents 1(a) to 1(g) herein) (hereinafter referred to as plaintiffs) were brought on record.

4. During the pendency of the appeal, it also transpired that Shri Chet Ram (defendant No.1 in original Suit No. 1/1 of 2017) had died when the suit was pending before the learned trial Court. Consequently, the appellate court proceeded to set aside the judgment and decree passed by the learned trial Court and remanded matter back for decision afresh.

5. After remand, on the application of plaintiffs, the legal representatives (petitioners herein) of deceased defendant No.1 Sh. Chet Ram [hereinafter referred to as defendants 1(a) to 1(c)] were brought on record.

6. The defendants 1(a) to 1(c) filed an application (CMA 570/6 of 2024) before learned trial court seeking leave to file independent written statement. The said application of defendants 1(a) to 1(c) has been dismissed by learned trial court vide order dated 4.12.2024, which is subject matter of challenge in the instant petition.

7. It is contended on behalf of defendants 1(a) to 1(c) that the provisions of Order 22 Rule 4 (2) of the Code entitles them to file independent written statement and the learned trial Court has erred by not exercising the discretion in their favour.

8. Admittedly, the original defendant No.1 [predecessor in interest of defendants 1(a) to 1(c)] had filed the written statement and had also contested the suit.

9. Order 22 Rule 4 (2) reads as under: -

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

10. Thus, a person made party under Rule 4 of Order 22 though is entitled to make any defence but such defence should be appropriate to his character as legal representative of the deceased defendant.

11. Copy of application filed by the defendants 1(a) to 1(c), seeking leave to file independent written statement, has been placed on record as Annexure P-8. The only averment made in the application is that after impleading the legal representatives of deceased defendant No.1 Sh. Chet Ram, an opportunity to contest the suit by filing independent written statement was not granted thereby causing great injustice and prejudice to them. There is no averment as to what defence was sought to be raised by defendants 1(a) to 1(c), which could be appropriate to their character as legal representatives of deceased defendant No.1. Since, learned trial court had no material before it to decide on the issue whether to allow defendants 1(a) to 1(c) to make defence as legal representatives of deceased defendant No.1, no fault can be found with the impugned order. Learned trial court has rightly observed that the legal representatives cannot be allowed to set up a new case under the garb of right vested in them by virtue of provision made in order 22 Rule 4(2) of the Code. It cannot be ignored that the predecessor in interest of defendants 1(a) to 1(c) had already contested the suit by filing a written statement and issues were framed accordingly. The parties had already lead evidence. That being so, the defendants 1(a) to 1(c) could not evade the disclosure of additional defence sought to be raised by them by way of independent written statement.

12. Learned counsel for the petitioners has placed reliance on a judgment passed by the Hon’ble Supreme Court in Civil Appeal 1960 of 1980, titled Bal Krishan vs. Om Parkash, AIR 1986 SC 1952 to assert that Sub- rule 4 (2) of Order 22 authorizes the legal representatives of defendant to file additional written statement or statement of obje