Ramesh Sethi and others vs Vlnod Kumar Kataria and another

Abhay M. Naik, J.

Short facts involved in the petition are that the Plaintiffs/Respondents instituted a suit for eviction against the sole Defendant, namely, Smt. Shobha Sethi. The suit was decreed by the Court of IX Civil Judge, Class-H, Jabalpur.

Feeling aggrieved by it, Smt. Shobha Sethi preferred an appeal u/s 96 of the Code of Civil Procedure. During pendency of the appeal, Smt. Shobha Sethi died on 7th January, 2005. Present Petitioners being legal representatives of Smt. Shobha Sethi, were substituted in her place in the appeal.

After substitution, the legal representatives submitted additional written statement under Order 22, Rule 4 of Code of Civil Procedure. It was opposed by the Plaintiffs/Respondents. Learned lower appellate Judge declined to take additional written statement on record.

Aggrieved by the aforesaid, the present writ petition has been preferred on the ground that Sub-rule (2) of Rule 4 of Order 22 of Code of CPC enables the legal representative to take any defence appropriate to his character as legal representative of the deceased Defendant.

Shri R.K. Sanghi, learned Counsel contended that the aforesaid provision read with Order 22, Rule 11 of CPC obliges even the Appellate Court to take additional written statement of the legal representatives on record provided it suits his character. Shri Sanghi, learned Counsel contended that in view of the specific provision of Order 22, Rule 4 read with Rule 11 of CPC Code, the additional written statement containing the defence of Petitioners in the character of legal representatives ought to have been taken on record and no leave is required for the purpose. Even, the Appellate Court has no power to decline to take it on record, because an appeal is a continuance of suit. Since the legal representatives of a Defendant in a suit is entitled as of right to submit an additional written statement containing an appropriate defence, the same right may be exercised even at appellate stage. He, for this purpose, relied on Sri Chand and Ors. v. Jagdish Pershad Kishan Chand and others, AIR 1966 SC 1427, Rachakonda Narayana Vs. Ponthala Parvathamma and Another, and Bal Kishan Vs. Om Parkash and Another, . In the cases of Sri Chand and Rachakonda Narayana (supra), it has been held that an appeal is a continuation of suit. This preposition cannot be doubted at all. In the case of Bal Kishan (supra), the death of a tenant occurred during pendency of the original proceedings for eviction. Likewise, the ruling of Gaurav Uppal and Others Vs. Mrs. Sunita Uppal, , relates to a situation where the death of a Defendant occurred in a suit. Case of Malkiyat Singh and Anr. v. Om Prakash and others, AIR 1995 Raj 38 deals with the right of a minor Defendant to file a fresh written statement after attaining majority, which is not a case herein. In Saved Sirajul Hasan Vs. Syed Murtaza Ali Khan Bahadur and Others , the death of one of the Defendants had occurred during pendency of the suit.

Much reliance has been placed on Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, . It has been contended by Shri Sanghi, learned Counsel, that even at the appellate stage legal representatives brought on record may make any defence appropriate to their character. In the case of J. C. Chatterjee (supra), it has been observed in paragraph 11 that under Sub-clause (ii) of Rule 4 of Order 22, CPC any person so made a party as a legal representative of the deceased Respondent was entitled to make any defence appropriate to his character as legal representative of the deceased Respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased.

For appreciating the contentions of the learned Counsel Shri Sanghi, it is necessary to examine Rule 11 of Order 22 of CPC Code, which reads as follows:

Application of Order to appeals. - In the application of this Order to appeals, so far as may be, the word "Plaintiff shall be held to include an Appellant, the word "Defendant" a Respondent, and the word "suit" an appeal.

The Petitioners are not the legal representatives of the Respondents but have been substituted in place of the deceased Appellant. The word "Appellant" is included by virtue of the aforesaid rule in the word "Plaintiff who has no right to file written statement. Rule 3 of Order 22 provides the procedure in case of death of one of several Plaintiffs or of sole Plaintiff. This rule does not contain a provision similar to that of Sub-rule (2) of Rule 4 of Order 22. Thus, it seems that the legislature has not deliberately given a right akin to one conferred by virtue of Sub-rule (2) of Rule 4 on the Plaintiff Intention of the legislature seems to be that the legal representatives of the Appellant may not be provided with such a right.

Apart from the aforesaid, the words, so far as may be, employed in Rule 11 of Order 22 of CPC Code, are very important. At the appellate stage, there is no specific provision to allow a legal representative of the deceased Defendant/Appellant to submit a written statement or additional written statement. That stage is co-terminus with the decision of the suit by the trial Court. Thus, no right is conferred on the legal representatives of the deceased Defendant/Appellant to submit an additional written statement at the stage of appeal.

In the result, the petition is highly misconceived and is, hereby, dismissed with cost quantified at Rs. 2000/- (Rupees Two Thousand) if already certified.

Petition dismissed.