Jagdish Parshad (Jagdish Kumar) vs Dhensi Ram (Deceased) and others

R.S. Narula, C.J.—Jodhi Ram predecessor-in interest of the respondent filed on application for ejectment of the Dhansi Ram before the Rent Controller, Ferozepore, in July, 1972. During the pendency of the application Jodhi Ram died in August. 1975 and Dhansi Ram died in October, 1975. The legal representatives of Jodhi Ram were brought on the record and filed the amended application for ejectment on or about November, 1, 1975. When the legal representatives of Dhansi Ram were brought on the record, they filed a fresh written statement in reply to the amended petition on January 31, 1975. In their written statement they took up inter alia an objection to the effect that Dhansi Ram was not an individual tenant but the firm was the tenant. The legal representatives of the landlord objected to this new plea being taken up particularly when it was inconsistent with the admission of the landlord''s claim about Dhansi Ram being the tenant in the written statement filed by Dhansi Ram before his death fey its order dated April 8, 1976, the court of Shri M.S. Sehmee, Rent Controller, Ferozepore, allowed the objection of the responents and held that the legal representatives of deceased Dhansi Ram (petitioners before me) cannot be allowed to take up the plea that Dhansi Ram was not the tenant in the shop in dispute. It was observed by the learned Rent Controller that the application for ejectment had already become old and that if the tenants were allowed to take up this new objection at this stage the ease would be re-opened and would be delayed further. To say the least, that is no ground in law to disallow a party from taking up a plea if the said party is otherwise entitled to do so. On the merits of the objection, the learned Rent Controller has held that the legal representatives of the original respondent could take up any defence appropriate to their character as such legal representatives and they can urge all the contentions which the deceased could have urged, bat in the present case the deceased having never raised an objection about his not being the tenant but the Hindu undivided family firm being the tenant, the decesed had admitted himself to be the tenant in the shop in dispute and that objection to the contrary was not open to the legal representatives of Dhansi Ram. I am unable to agree with this proposition. Whatever may be the value of the new plea taken up by the legal representatives of the deceased in their written statement, they cannot be compelled to delete that objection or disallowed from taking it. Once ah amended plaint is filed, a legal right accrues to the opposite party to file a fresh written statement wherein new objections can be taken in the absence of any exceptional circumstances or any statutory bar or special order of the Court at the time of allowing the amendment.

In Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, it was held by their Lordships that under sub clause (ii) of rule 4 of Order 22 of the Code any person who is made a party as a legal representative of the deceased is entitled to take any defence appropriate to his character as legal representative of the deceased respondent. In other words, observed their Lordships, 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. It was open to the deceased in the case before me to have withdrawn the admission, if any, made by him or to have amended his written statement with the leave of the Court to take up the plea which is now sought to be take up by his legal representatives. The Supreme Court in J.C. Chatter jee''s case went to the length of holding as below :�

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 a the legal representatives of the deceased but also in their persona capacity avoiding thereby a separate suit for decision on the independent title.

If the trial Court had any doubt about the objection now set up by the petitioners not being open to them as legal representatives, it could merely pass an order allowing their request (which they made before the Court below) to be impleaded as respondents not only as legal representatives of Dhansi Ram but also in their individual capacity. In fact, they have not raised any defence in their written statement claiming in anything their individual capacity they have claimed that was not Dhansi Ram but the firm which was a tenant of the opposite side and that Dhansi Ram having died, the firm continued to be the tenant with the only variation that the deceased, had gone out of the field and the remaining members of joint Hindu family firm constitute the firm. Whatever may be the truth of the contention, the fact remains that there is no legal bar in the way of the petitioners to take up that defence. No law to the contrary has been cited by the Learned Counsel for the respondents. The Supreme Court having said that all contentions except those which were personal to the deceased were open, to the legal representatives and that the defence now sought to be taken up by the petitioners not being in any manner personal to the deceased this petition must be allowed and the objection of the respondents ha to be repelled.

For the reasons assigned above, I allow this petition, set aside and reverse the order of the learned Rent Controller and overrule the objection raised by the respondents to the taking up of the plea urged by the petitioners in their written statement filed in reply to the amended plaint. Parties are left to bear this own costs. They have been directed to appear before the learned Rent Controller on August 22, 1977 Records should be returned to the Rent Controller immediately.