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Judgment
Ashok N. Hinchigeri, J.—The petitioners have called into question the order, dated 09.02.2009 (Annexure-A) passed by the IInd Additional Civil Judge (Sr. Dn.), Mangalore on I.A. No. 7 in O.S. No. 320/2003.
The facts of the case in brief are that the respondents filed the suit against 12 defendants including the petitioners'' father (defendant No. 1). The petitioners claim is that the first defendant fifed the written statement on 24.08.2004 with the office. He passed away on 17.01.2006. On appearance of the LRs (the petitioners herein) filed the written statement on 20.08.2005 with the office. As the Trial Court recorded that the first defendant''s LRs have net filed the written statement, they made IA No. 7 requesting the Court to receive the written statement by condoning the delay in filing the same. By its order dated 09.02.2009, the Trial Court rejected I.A. No. 7.
Aggrieved by the same, this petition is present.
Sri Pundikal Ishwar Bhat, the learned Counsel for the petitioners submits that the first defendant had indeed filed written statement, as the same was not taken on record. The petitioners (first defendant''s LRs) filed the written statement as the same was not taken on record by the Trial Court and on the otter hand, the Trial Court recorded that it is not filed at all. They filed I.A. No. 7.
Sri Pundikai Ishwar Bhat submits that the Trial Court has proceeded with the matter that if the original defendant failed to file the written statement his LRs cannot file the written statement. He brings to my notice the Hon''ble Supreme Court''s deck ion in the case of Bal Kishan Vs. Om Parkash and Another, wherein it held that:
The Sub-rule (2) of Rule 4 of Order 22 authorises the legal representative of a deceased defendant to file an additional written statement or statement of objections raining all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent
Nextly, Sri Bhat sought to draw support from this Court''s decision in the case of Damayanthi and Ors. v. SRL Venkateshwara and Ors. reported in 2000 (2) KCCR 1463. He has relied on the Head Note portion, which is extracted hereinbelow:
The legal representatives of a deceased defendant must be permitted to the their written statement notwithstanding the fact that due to personal conduct of the deceased defendant the defence was struck off. When the decree is ultimately to be granted and is to be enforced on the LRs certainly they must have a say in the matter and there cannot be a violation of their right to be heard before anything is passed against them though as legal representatives.
He also brought to may notice the decision of the Apex Court in the case of Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, . It is held in the said case that:
In a suit for specific performance of contract, the legal representatives of the deceased defendant who are prima fade co-owners of the property in dispute are entitled to file additional written statement
Sri Sharath H, the learned Counsel for respondent Nos. 9 to 11 submits that the LRs of a deceased defendants are not entitled to file the written statement or additional statement, if the original defendant himself has not filed the written statement. He further submits that the deceased party can proceed with the case from the stage at which it was left when the original party died.
Sri Sharath H, has relied on the Bombay High Court''s decision in the case of Dareppa Alagouda Vs. Mallappa Shivalingappa, . The same is extracted hereinbelow:
This ohvicusly means that he can make a defence only in his capacity as a legal representation of the deceased defendant As observed in 4 Lab. 721 when a party to a suit dies, his legal representatives are appointed merely in order that the suit might proceed, and a decision be arrived at It is the rights and disabilities of the original parties that ham to be considered and not those of the legal representatives themselves AB, that the legal representatives can, therefore, do is to take up the suit at the stage at which it was left when the original party died and to continue it is not open to them to assert their own individual or house title to the suit It follows, therefore, that If any defines to the suit was not open to the deceased defendant, his legal representative would not be at liberty to plead that defence. If for instance, the deceased defendant was estopped from putting forward any defence, his legal representatives, though not themselves similarly estopped would not be at liberty to put forward that defence. That would be allowing the legal representatives to set up or agitate a new or individual right, and it is not open to them to put forward any personal defence. As held in Kizhiakalathil Puthan Veetil Thavazhi Karnavan Vs. Manikat Variath Ukkali Varissiar''s son Sankunni and Others, if a legal representative wants to raise any new point which the deceased party could not have raised, he must get himself impleaded in his personal capacity, or he must challenge that decree in a separate sua. The same view wan taken by a FUll Bench of the Allahabad High Court in ILR. (1940) ALL 153.
Nextly, Sri Sharath has also retted on the Calcutta High Court judgment in the case of Surendra Narain Sarbadhikari v. Bholanath Roy Chowdhury reported in AIR (30) 1943 follows:
the legal representative of the deceased defendant is bound to adopt the written statement of the latter and cannot at the appellate stage raise a new case, a case inconsistent with the case of the deceased as made in his written statement.
The submissions of the learned Counsel have received my anxious consideration
I am afraid, the decisions relied upon by the respondents'' side are no longer governing the field. In the case of Damayanti and Ors. (Supra) this Court has taken the considered view that the legal reprehensive of a deceased defendant must be permitted to file their written statement notwithstanding the fact that due to the personal conduct of the deceased defendant the defence was struck off. The defence being struck off and the defence not being raised would more or less have the same effect As held by the Court in the said case, if the suit is ultimately decreed, the same has to be enforced against or on the LRs of the deceased defendant The principles of natural justice require that the LRs of deceased defendant be permitted to file the written statement even when the deceased defendant has failed to Ste his written statement
It is also profitable to refer to the provisions contained in Order 22 Rule 4(2) CPC which reads as follows:
Any person so made a party may make any defence appropriate to his character as legal representatives of the deceased defendant.
The interpretation of the aforesaid provision fell for consideration of the Apex Court in the case of Bal Kishan (supra). The Hon''ble Supreme Court held that the afore extracted provision authorizes the legal representatives of a deceased defendant to file an additional written statement raising all the defences.
For yet another reason, the impugned order is liable to be quashed and the written statement filed by the petitioners is required to be taken on record. Even before and without perusing what they have set out in the written statement, the Trial Court has refused to take their written statement on record. It is quite possible that the petitioners have agitated their rights independently of the deceased defendant.
Thus, viewed from any angle, the petitioners'' written statement is required to be taken on record. The impugned order is net aside. I.A. No. 7 stands allowed. The Trial Court is directed to take the written statement of the petitioners, which is already filed, on record.
This petition is allowed accordingly. No order as to costs.