Mukhtiar Kaur vs Jarnail Singh

Ashok Bhan, J.

Plaintiffrespondent Jarnail Singh (hereinafter referred to as the plaintiff) filed a suit for declaration to the effect that he is owner and in possession of the suit land against Saudagar Singh deceased now represented by the petitioners, situated at village Naraingarh Sohia, tehsil Barnala, District Sangrur, Saudagar Singh was the owner of 1/3rd share in the suit land measuring 102 Kanals 13 Marlas. He was real Taya (plaintiffs father''s elder brother); that in the course of family settlement effected in November, 1985, Saudagar Singh gave his 1/3rd share to the plaintiff and put the plaintiff into possession; that defendant Saudagar Singh being sonless also made a Will in favour of the plaintiff on 26.9.1985, that defendant Saudagar Singh had great love and affection for the plaintiff as he was serving him in his old age. Apprehending that defendant Saudagar Singh may deny the rights of the plaintiff, he filed the present suit.

On 6.1.1989, defendant Saudagar Singh put in appearance and filed the written statement admitting the claim of the plaintiff in toto. His statement was also recorded wherein he admitted the plaintiff''s claim. The case was adjourned for consideration. Before the case could be taken up on the adjourned date of hearing, defendant Saudagar Singh died. Mukhtiar Kaur and Piar Kaur daughters of deceased Saudagar Singh, made an application for being brought as legal representatives of the deceased on record and the same was allowed. Thereafter, they made an application for amendment of the written statement wherein it was alleged that the alleged family settlement was never effected in the presence of the applicants nor the applicants could be deprived of their rights in the disputed property by Saudagar Singh; that the Will dated 26.9.1985, was forged and fictitious document and did not bear the thumb impression of Saudagar Singh deceased. Applicants sought permission to amend the written statement for the protection of their rights and to withdraw the alleged admission made by Saudagar Singh deceased. It was also alleged that Saudagar Singh did not put in appearance neither did he file the written statement nor did he make a statement in the Court admitting the claim of the plaintiff that in fact an imposter was put in his place to admit the claim of the plaintiff in the suit.

In the reply filed to the application by the plaintiff, it was contended that the application was not maintainable at that stage; it was further pleaded that the applicants being the legal representatives of the deceased were not competent to introduce a new cause of action in their written statement; that they had only a right to continue with the proceedings in the suit and could protect the rights of the deceased only and could not put up an independent claim of their own. It was denied that any imposter was put in place of Saudagar Singh in Court to file a written statement or make oral statement in the Court.

The Trial Court without going into the question as to whether any imposter was put in place of Saudagar Singh to defend the suit rejected the application for filing the amended written statement. Aggrieved by the said order, the petitioners have filed the present revision petition.

I have heard the learned counsel for the parties at length.

At the first instance, learned counsel appearing for the petitioners argued that in fact an imposter had been put in place of Saudagar Singh who put in appearance on his behalf; and filed the written statement and also made a statement on his behalf, that the trial Court has erred in not deciding this question. I find force in this submission of the learned counsel appearing for the petitioners. Learned counsel appearing for the respondent could not put a serious challenge to this submission of the learned counsel for the petitioner. The trial Court should have gone into the question as to whether any imposter had been put in place of Saudagar Singh to file the written statement and to admit the claim on behalf of Saudagar Singh or not. This question could either be decided in a fresh suit filed by the applicantpetitioners by initiating separate proceedings or in the same suit while considering their plea for amendment of the written statement. The trial Court is accordingly, directed to decide the question as to whether any imposter was put in place of Saudagar Singh to file the written statement and to make statement in Court. If this allegation of the applicantpetitioners is found to be correct then the applicantpetitioners would be at liberty to file a fresh written statement in accordance with law.

The next point urged by the learned counsel appearing for the petitioners was that the applicantpetitioners could file an amended written statement taking a contrary plea to that of their predecessorininterest; that there were exceptional circumstances which could not restrict the rights of the applicantpetitioners to file the amended written statement taking inconsistent or amended pleas already taken by Saudagar Singh deceased. Reliance was placed on Prem Singh and others v. Harpal Kaur and others (19911) PLR 209, in which the plaintiff after the death of deceased defendant filed an amended plaint and the legal representatives of the defendant claimed a right to file the amended written statement to the amended plaint wherein they wanted to take contradictory pleas to the pleas taken by the predecessorininterest. In that case, counsel for the respondents did not contest the right of the defendants to take inconsistent or contradictory pleas in the amended written statement once an amended written statement was allowed to be filed on behalf of the defendants. What weighed with the Court in the said case was that once an amended plaint was filed then ipso facto, the right accrued to the defendant to file an amended written statement to the amended plaint and in the said amended written statement, they could take additional as well as contradictory pleas. In that case, it was observed by this Court as under:

"I find force in the contention raised by the defendantpetitioners. There is no rule of law statutory or otherwise which limits the rights of the defendants when called upon to file written statement to an amended plaint to any particular pleas; Policy underlying the law of pleading does not suggest that the amended written statement should be confined and restricted to the pleas already taken by the defendants in their earlier written statement. It has been held in a judgment reported as Jagdish Parshad (Jagdish Kumar) v. Dhensi Ram (deceased), (1977) 79 PLR 670, that once an 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 this case also the defendants were within their rights to file an amended written statement to the amended plaint and there are no exceptional circumstances which restrict the defendants not to take any additional or inconsistent pleas to the pleas already taken by them in their original written statement. It has been repeatedly held by this Court that the law relating to pleadings should not be construed and applied with undue rigidity and strictness if no prejudice or embarrassment towards fair trial of the suit is caused. Counsel appearing for the parties have stated at the bar that evidence of the parties is yet to be led. Under the circumstances no prejudice or embarrassment is caused to the fair trial of the suit and it would, of course, be open to the Court to consider whether or not the inconsistent plea which is being taken by the defendants in their amended written statement now is an afterthought and the same lacks merit but the right of defendants to raise the new or inconsistent pleas can hardly be negatived under the circumstances. Moreover, in this case the amended written statement was permitted on payment of costs which have been accepted by the plaintiffrespondent. Once the costs are accepted, the respondent is estopped from challenging the filing of the amended written statement."

The facts of the present case are quite different from the one in Prem Singh''s case (supra). In this case, the point which arises for consideration is as to whether the successorininterest on being added as the legal representatives of the deceased defendant could take a contradictory stand to what had been stated by their predecessorininterest in the original statement which were personal to his knowledge and which determined his personal rights and where no amendment was effected in the plaint.

In such cases the legal representatives of the deceased defendant are bound to adopt the written statement filed by the deceased and cannot introduce a new case, a case inconsistent with the case of the deceased as made out in his written statement. Applicantpetitioners stepped into the shoes of the deceased defendant. They cannot be permitted to take up the contrary pleas to the ones taken up by their predecessorininterest because the effective decision has to be of the dispute between the plaintiff and the original defendant specially when in a case where the facts stated in the written statement by the deceaseddefendant were personal to his knowledge. It may be made clear that it would not deprive the plaintiffpetitioner to take up the plea that an imposter was put up in the Court to file the written statement in Court and to admit the claim of the plaintiff in place of deceased Saudagar Singh because in such an event, the written statement filed or the statement made on behalf of Saudagar Singh would neither be a genuine written statement nor a statement made by him.

For the reasons recorded above, this revision petition is partly allowed. It is held that the applicantpetitioners would not be allowed to file an amended written statement taking contrary pleas to that of Saudagar Singh deceased, their predecessorininterest, but the Court shall go into the question as to whether an imposter was put in place of Saudagar Singh to appear in Court, file the written statement and admit the claim on behalf of Saudagar Singh deceased. If the Court comes to the conclusion that an imposter was put in place of Saudagar Singh deceased then the applicantpetitioners shall be at liberty to file a written statement afresh otherwise the Court shall proceed on the pleadings already made in accordance with law.

Parties through their counsel are directed to appear before the trial Court on 12.6.1992.