ASHWINI KUJUR vs STATE OF JHARKHAND

The petitioner, who was substituted as defendant no.l(b) on death of his father-defendant no.1, is aggrieved of order dated 02.07.2016 passed in

Partition Suit No.39 of 2010 by which the trial court has declined permission to file a separate written statement for taking a stand contrary to the

stand of defendant no.1 in his written statement.

Title Partition Suit No.39 of 2010 was instituted by Dilip Kujur and eight others for a preliminary decree of partition claiming ½ share in schedule

'A' property. Father of the petitioner has been arrayed as defendant no.1. Defendant Nos.2 and 3 are real brothers of defendant no.1 and defendant

no.4 is Deputy Commissioner, Lohardaga. The defendant nos.1 and 2 filed a joint written statement. Defendant no.3 has filed a separate written

statement resisting the prayer for partition of schedule ‘A’ property. During pendency of the suit the defendant no.1 died on 05.03.2012 and his

legal heirs and three of his sons including the petitioner were substituted in his place vide order dated 17.05.2012. The petitioner-defendant no.1 (b)

appeared in the suit on 28.08.2015 and filed written statement with an application dated 08.01.2016 which has been dismissed by the impugned order

dated 02.07.2016. 3. Contending that on death of his father when the petitioner found that a joint written statement was filed obtaining signature of his

father fraudulently, it was necessary for the petitioner to file a separate written statement, the learned counsel for the petitioner submits that once a

plea of fraud has been set-up, the issue must be decided by the trial court.

Mr. Rohitashya Roy, the learned counsel for the respondent nos. 2 to 10, 11, 13 and 14 referring to order XXII Rule 4(2) CPC submits that on

death of a defendant  his legal representative(s) can take a plea which his predecessor has taken but he cannot take a new plea unless he has

been impleaded in the suit in his individual capacity. The learned counsel has referred to decision in “Vidyawati Vrs. Man Mohan and Othersâ€

reported in (1995) 5 SCC 431 to fortify the above contention.

In the partition suit, the plaintiffs have pleaded that the defendant no.1 and his son-the present petitioner, entered into agreements to sale of the suit

lands and they, in fact, have received part consideration from different persons. The cause of action for instituting the suit has been pleaded denial by

the defendants to partition, more particularly, the defendant no.1 and his son namely, Ashwini Kujur had started negotiating sale and intended to

dispose of the suit property. In the written statement filed on behalf of the defendant nos.1 and 2 execution of agreement to sale by the petitioner has

been admitted and they have also admitted that the plaintiffs form part of Joint Hindu Family. However, the defendant no.3 in his written statement

has disputed that the plaintiffs come from common ancestor and that they are entitled for ½ share in the joint ancestral properties. In the written

statement of defendant no.1 (b) which has not taken on record, there is no specific denial to the plaint averments in paragraph nos. 23, 24 and 25.

Order VIIIÂ Â Â Rule 3 CPC provides that it is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the

plaintiff, but the defendant must specifically deal with each allegation of fact which he does not admit as truth. Rule 4 to order VIII CPC further

provides that denial by the defendant of an allegation of fact in the plaint must not be evasive.

The defendant no.3 has denied the claim of the plaintiffs for partition in schedule 'A' property on the ground that they did not belong to common

ancestor. The allegation that the defendant no.2 in collusion with the plaintiff has obtained signature of father of the petitioner and filed a joint written

statement is an independent issue in the suit which can be pleaded by the defendant no.1 (b) only after his impleadment in the suit in his independent

capacity. In “Jagdish Chander Chatterjee V. Sri Kishan†reported in (1972) 2 SCC 461, explaining the scope of Order XXII Rule 4 (2) CPC the

Supreme Court has observed thus:

 “10. Under sub-clause (ii) of Rule 4 of Order XXII Civil procedure Code 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. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no

objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a

separate suit for a decision on the independent title.â€​

The logic behind necessity of a substituted defendant for taking an independent stand only by impleading himself in his individual capacity can be

inferred from the mandate under Order VIII Rule 5 CPC r/w Order XXII Rule 4(2) CPC. The petitioner, who has not specifically denied execution of

agreement to sale in relation to a part of schedule 'A' property, has tried to set-up an independent defence without impleading himself in his individual

capacity, which, in view of decision in Jagdish Chander Chatterjee, the trial judge has rightly declined. Moreover, in the suit, issues were framed on

08.07.2016 and the plaintiffs' evidence was closed on 12.04.2017. By the time a report from the trial court was called by this Court, the defendants

had already examined five witnesses.

Thereafter, the suit was fixed for final arguments.

In the above facts, I am not inclined to interfere with the impugned order dated 02.07.2016, and accordingly the writ petition is dismissed.