Ramnik Arora and Others vs Sardar Gurdip Singh and Others

K. Kannan, J.—This common order will dispose of two revision petitions bearing C.R. Nos. 3351 of 2011 and 3352 of 2011. The revision petition is against the order passed by the trial Court dismissing the pleas sought at the instance of the legal representatives of the deceased-defendant to file additional written statement. Another order that came to be passed was, a permission sought by the legal representatives to cross-examine the other defendants before the plaintiff could examine.

The suit had been filed by Rajinder Singh, son of Nihal Singh for declaratory rights in respect of immovable property. Nihal Singh had four other sons, one of whom died in a motor accident along with Nihal Singh. He also had two daughters, one of them was a party in a suit and other daughter had also died. The statement had been filed by 2nd defendant, the brother of the 1st plaintiff claiming that the plaintiff had no right to the property and that the property belonged to the 2nd defendant and that property never vested with the estate of the father Nihal Singh. There had been a deed of relinquishment pertaining to the property, dated 10.10.1969 which was duly registered by the Sub-Registrar, Amritsar, on 07.01.1970. According to the written statement, documents had been executed inter alia by the plaintiff as well as by 3rd defendant. The statement had been verified by all the defendants including the 3rd defendant whose legal representatives are the petitioners.

When the 3rd defendant died, the daughters were impleaded as legal representatives. The daughters moved an application for filing of an additional written statement. They contended that they shall be given an opportunity to file additional written statement and it was stated that the pleas taken up by the predecessor of the applicant namely their father Kirat Pal Singh (3rd defendant) are fatal to the rights of independent title of the applicants. The application seeking for permission to file additional written statement also contained a plea that power to file additional written statement has been recently considered in the judgment of the Supreme Court and they were, therefore, entitled for such consideration. The application filed by the legal representatives was dismissed. The revision is against the said order.

Learned senior counsel appearing on behalf of the revision-petitioners relies on the judgment of the Supreme Court in Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, in which it was held that the legal representatives could also file additional written statement to take the pleas available to them. This was in the context of suit for specific performance filed against one Kapoor Chand. Kapoor Chand died and two applications were filed at the instance of his legal representative under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC. The person who sought impleadment was stranger to the agreement and he wanted to take pleas independently of a right which was available to him as a legal representative. The trial Court had rejected the plea and the Supreme Court intervened to say that rules of Civil Procedure were intended to serve the principles of natural justice and the persons who were brought on record could not be denied right to file statement to establish an independent right that existed with them. The Court was also explaining that even a stranger to agreement can be impleaded and there is no inviolable rule that in suit of specific performance a stranger can not be impleaded. This judgment must be understood as laying down a proposition that legal representatives who are impleaded shall, in the light of what is contained under Order 22 Rule 4(2) be permitted to file written statement in their capacity as such legal representatives and the additional circumstances when independent rights of the person impleaded could be brought. It is always possible for a legal representative impleaded, to take up a plea that there is some right in the property sourcing it otherwise than through the deceased defendant and, therefore, a plea which could not have been taken by the deceased-defendant, he was competent to take. If we understand the judgment in the above manner the legal representative shall surely be entitled to file a additional written statement but he shall have a basis for setting up any independent claim to the property for which the deceased father himself could not have been taken.

By way of illustration, it could be stated that grandson who has a right to the ancestral property may have a right to assert independently, otherwise than through father, except in circumstances where the conduct of a father could bind a junior member of a co-parcenary. If the father had himself made an admission relating to a property that it was his separate property and not ancestral property, a son who is impleaded, could still be permitted to show that a right exists independently than through father and it could be asserted by taking a plea that the property was indeed ancestral property and not as admitted by the father. The additional written statement in such a situation would allow for plea which legal representative can show will not bind him and allow a claim in his own. This is the correct understanding as seen also from a subsequent judgment, as also referred by the learned Senior counsel himself in case of Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, The Supreme Court was explaining that legal representative could urge all contentions which the deceased could have urged, except only those which were personal to the deceased, and legal representatives can set up their own independent title as well. This is precisely what I have observed by saying that when a legal representative was brought on record he could have stated that he had some independent right and sought, for a permission to file written statement to set up his independent plea in relation to the property.

Learned senior counsel would argue that even if additional written statement were to be filed, it can be of every circumstance and would include also circumstance which the deceased could himself explain. According to him, if there were admissions by the father that he had executed a release deed, the father could have withdrawn the same and such admissions shall be permitted to be brought by himself by making amendments in the written statement. Learned counsel also cites to me decisions of the Supreme Court, that a person who makes an admission but wants to withdraw the same, he would seek for amendment of the pleadings. It is imperative that person that makes a case for withdrawal sets out the circumstances for withdrawal. In this case no circumstances for withdrawing any statement, which the father had been made was even referred to in the petition, as justification for permission to file an additional written statement. Learned Senior counsel would argue that such a statement could come later at the time when statement was filed. In my view, this would mean an attempt to put the cart before the horse. The theoretical basis for the additional written statement is contained under Order 8 Rule 9 CPC:-

Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.

This includes several types of situations: one, it contemplates that a subsequent pleading cannot be brought except by leave of the Court. Two, the Court may allow for such subsequent pleadings to be brought within a particular limit and the law that has developed around this provision gives some opportunity to the defendant to come up with even inconsistent pleas. But there is difference between subsequent pleading by a plaintiff and the defendant. If the Court will be rigorous in its approach to a subsequent pleading by a plaintiff restricting it to a response to the written statement or additional facts which are not inconsistent, the Courts shall normally be more liberal with the written statement of the defendants since it shall even be a privilege to a defendant to take inconsistent pleas. Even in this liberal approach, there are some inbuilt restrictions which are woven through judicial pronouncements. If there is already an admission, it shall not be permitted to be withdrawn by additional written statement. The exception would be when an admission made was under a wrong premise and there is a case made out for explaining the admission or withdrawing the same. In either case there shall be a ground made in order that the Court grants the leave.

The width of circumstances under Order 22 Rule 4(2) and under Order 8 Rule 9 CPC are mutually exclusive. The additional pleading under the former is a pleading consistent with the status of a person as a legal representative to a deceased defendant and pleas standing in his/her shoes. An impleadment right de hors the deceased-defendant even if filed under Order 22 Rule 4(2) must be seen through the prism of Order 8 Rule 9 CPC. The provision for grant of leave under Order 8 Rule 9 cannot be mere formality, for, it were to be so, there is not even necessity to incorporate a provision for leave of the Court. The Court''s power to grant leave must, therefore, be on an appropriate justification made by party for subsequent pleadings. An impleadment of the legal representative and posting the case for a subsequent pleading or additional written statement is a measure of natural justice in order that the legal representative that is added comes up with such pleadings as they are consistent with his status as a legal representative or assertion of his right. The contention that an admission could be withdrawn or that an explanation could be given, could apply to a legal representative as well, but he will be beset with the very same restrictions which the original defendant will be constrained by. It should be possible for even a defendant to withdraw the admission only by setting out reasons as to how there was any mistake in the pleadings or there was any vitiating circumstances that led to an admission which was required to be withdrawn. It cannot be a whimsical withdrawal merely because it is possible for a person to come up with an inconsistent plea. All that the legal representative has stated in his petition for additional written statement is that the recent judgment of the Supreme Court makes possible that an additional written statement could be filed. It shall be wrong to understand that a judgment gives a new right which did not exist before. Judgments are expositions on what a legal provision contains. Barring exceptions when the Courts pronouncements themselves fill up a lacuna for area where there is no legislation, judgments must be understood only as explaining what the legal provisions contained in the text of law. An interpretation of how Order 22 Rule 4(2) CPC, is to be understood will surely admit of a plea by legal representative that he shall be given opportunity to file additional written statement. A permission for such additional written statement seeking for leave must set down the grounds which he wants to say. It is unnecessary that entire pleadings must be set through the petition, however, a basis for such additional pleading must at least be there in order that the Court exercises its power to grant leave in appropriate cases. If additional written statement is brought even without setting out the reasons, it may give rise to an unnecessary situation of the plaintiff again joining issues on inconsistent pleas that have come through additional pleadings and to make out a case for striking out the pleadings permitted. It is to prevent these eventualities that the petition that is filed seeking for the leave must set out the basis.

Learned Senior counsel seeks to contend that he may have several contentions which are not yet disclosed and it might even include a case that the legal representative had independent right in the property. If it were to be so and that was not however, set forth already, the Court was perfectly justified in observing that no ground was made for allowing for an additional written statement. The dismissal of the petition to permit the legal representative to file additional written statement was under the circumstance justified. Civil Revision No. 3351 of 2011 therefore deserves to be dismissed.

The only point urged in Civil revision No. 3352 of 2011 is that the legal representatives have also been denied opportunity to cross-examine the defendants. The impleadment, according to the senior counsel has become a needless exercise or an empty formality for, they are not even allowed to participate in the proceedings. The contest amongst co-defendants was perfectly possible and a permission to cross-examine the defendants would have been also possible if pleadings allowed for such a course. If, in this case, the deceased-defendant had taken a written statement which was at variance with the written statement filed by the second defendant, it shall be permissible for the 3rd defendant or his legal representative to cross-examine the 2nd defendant before the plaintiff could cross-examine. If the 3rd defendant, on the other hand, had filed written statement along with the second defendant and made out a common case against the plaintiff, the right of cross-examination for the legal representative will avail only against plaintiff and cannot be exercised against the co-defendants. The right to cross-examine as contemplated in the Evidence Act is only for an adversary in litigation. It is only in that context that collusive defendant with the plaintiff shall, as a matter of procedure be required to cross-examine the plaintiff before the other defendants are cross-examined. Cross-examination allows for certain privileges, such as asking leading questions which chief-examination cannot permit. Consequently, cross-examination of a co-defendant will completely ruin the course of trial itself and could cause serious embarrassment. The defendant, who had already pleaded his defence adversely to the plaintiffs cause, will have a new situation to grapple with of yet another defendant taking up what the plaintiff has stated and allow for plaintiff to plead an admission of defendant as basis for reliefs in suit. Amongst co-defendants, if there are different voices, they must be expressed in the respective written statements themselves. After making a common plea, anyone of them cannot resile from the same.

There could be very several exceptions to what are brought out above. It could be in instance where one defendant who has joined other defendants later, has an explanation to give that it was not his own signatures and it was an impersonation. There can also be instances, where the defendant could have stated that he was made victim of fraud or deception by other defendants. Any explanation which the defendant, who supported the other defendants'' cause could have stated to resile from the statements must be stated initially as a justification for withdrawing same. If there was any justification for withdrawing the statement made by the predecessor, it ought to find place in the petition seeking for permission. As I have already observed, the petition contains no such averments giving any justification for withdrawing or explaining an admission. A permission to cross-examine the codefendants was therefore, simply not possible of compliance and the Court was justified in rejecting the said plea also. The revision petitions are without merit and they are required to be dismissed and accordingly dismissed.