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Judgment
Manmohan Singh, J.—The above-mentioned application has been filed by defendants No.1(a), 2(a) & 2(b) for modification/recalling the
order dated 15.09.2009.
The plaintiff has filed the present suit against the defendants No.1 & 2 for recovery of a sum of Rs.88,17,000/- along with interest. Admittedly,
the said defendants No.1 & 2 died in the years 2006 & 2007 respectively. By order dated 21.07.2008, the legal heir of deceased defendant No.1
and further by order dated 01.09.2009, the legal heirs of deceased defendant No.2, who are the applicants in the present application, have been
brought on record and the applications in this regard bearing I.A. Nos.12675/2007 & 13405/2006 were disposed of and directions were issued
to file the amended memo of parties. The matter was thereafter referred to the Joint Registrar for evidence of the plaintiff.
The contention of the present applicants, i.e. defendants No.1(a), 2(a) & 2(b) is that no prejudice would be caused, if the order dated
15.09.2009 is modified and they are granted liberty to file their fresh written statement/ defence in the present suit. The Learned Counsel for the
applicants states that in view of the provisions of Order XXII, Rule 4(2), his clients are entitled to make the defence, as they have become the
parties while disposing of the plaintiff''s application.
The application is strongly opposed by the Learned Counsel for the plaintiff, on the ground that the same is barred by time, as it has been filed
on 23.03.2010, i.e. after the period of more than six months. Secondly, the present application is nothing but a mere object of the applicants to
delay the proceedings of the case. The Learned Counsel has further submitted that all the contentions were considered by the Court on
01.09.2009 when the application of the plaintiff was allowed and the legal heirs of the deceased defendants, i.e. the present applicants were
brought on the record.
I agree with the submission of the Learned Counsel for the plaintiff, as far as the merit of the present application is concerned. It is an undisputed
fact that defendants No.1 & 2 had filed the written statement to the suit. The replication was also filed by the plaintiff and subsequently, the issues
were framed. The evidence of the plaintiff is also on record. The defendants have filed their evidence by way of affidavit and cross-examination of
DW-1 was also partly recorded. There is no dispute that the applicants are the legal heirs of the deceased defendants. They have no independent
right, title or interest dehors the claim of the defendants No.1 & 2. Actually, they have come on record at a later proceeding and have been
impleaded by the plaintiff on the death of defendants No.1 & 2. They have simply stepped into the shoes of the deceased defendants. Hence, they
cannot be permitted to set up a new case or to be allowed to file the fresh written statement which has already been filed by defendants No.1 & 2.
The application filed by the applicants is highly misconceived and the same is accordingly dismissed.
CS(OS) No.1239/2002
List the matter before the Joint Registrar on 19.12.2011 for further proceedings.