Satyabhama Choudhury vs Bansidhara Choudhury and Others

B.K. Misra, J.—This Writ Petition has been filed by the present Petitioner being aggrieved with the order of the Learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in Civil Suit No. 151 of 2004 dated 10.2.2011 (Annexure- 4) wherein the Learned Court below refused to accept the written statement filed by the Petitioner after she was substituted on the death of her husband, who was Defendant No. 16 in the Court below. For the sake of clarity in brief it may be mentioned here that one Bansidhara Choudhury, who is the present Opp. Party No. 1 in this Writ Petition, as Plaintiff instituted Civil Suit No. 151 of 2004 in the Court of Learned Civil Judge (Sr. Divn.), 1st Court, Cuttack for partition of ''B'' & ''C'' schedule properties fully described in the schedule of the plaint & for carving out the specific shares of the parties. In the said suit Sachidananda Choudhury was arrayed as Defendant No. 16. The said Sachidananda Choudhury the original Defendant No. 16 along with Defendant Nos. 11, 13 & 15 had filed their joint written statement. During pendency of the suit, the original Defendant No. 16 died & accordingly his legal heirs, namely the widow & the minor daughter were substituted. Notice was issued from the Court to the substituted Defendant 16(a) by the Court to enter appearance on 30.08.2010 & accordingly the present Petitioner entered appearance & applied for time for filing the written statement. The Court allowed her prayer & ultimately a written statement was filed.

Challenging such filing of the written statement by the substituted Defendant No. 16(a), a petition was filed by the Plaintiff (present Opp. Party No. 1) with a prayer not to accept the said written statement.

After hearing the parties, the impugned order was passed. Learned Counsel appearing for the present Petitioner contended that when the present Petitioner & her minor daughter were substituted as the legal heirs of the deceased-Defendant No. 16 notice was issued by the Court vide Annexure-1 asking her to answer the material questions relating to the suit.& produce any document basing upon which she would support the defence & after appearing the Petitioner prayed for time to file written statement. The Court granted time for the same & ultimately the written statement which was filed is not different from the stand which has already been taken by her husband, who is original Defendant No. 16 in the suit. It was also contended that when no new fact has been introduced, the Learned Court below should not have rejected the prayer of the substituted D-16(a) to accept the Written Statement, as being the legal representative she has a right to take the defence by way of filing a written statement & she may adduce evidence in the suit. Accordingly, it was contended by the Learned Counsel for the Petitioner that the impugned order at Annexure-4 should be set aside. In support of such contention reliance was placed on a decision of the Apex Court as reported in 2007(II) OLR (SC) 811, Sumtibai & ors -v- Paras Finance Company Registered Partnership Firm.

On the other hand, Learned Counsel appearing for the Opp. Party No. 1 contended that the impugned order suffers from no infirmity as a legal representative substituted in place of a deceased- Defendant cannot be permitted to make out a new case afresh in another written statement. The only right he/she has, to make a defence appropriate to his character as legal representative of the deceased Defendant. In support of such contention reliance was placed on a decision of the Rajasthan High Court as reported in AIR 1998 Rajasthan 98, Ramgopal & another V. Khiv Raj & ors.

Admittedly, the parties in C.S. No. 151 of 2004 belong to one family & their common ancestor was late Gobinda Choudhury. The suit is for partition of the ''B'' & ''C'' Schedule properties fully described in the plaint. The property described in Schedule ''B'' of the plaint as per the plaint averment is the exclusive property of late Laxman @ Laxmidhara Chaudhury. The present Plaintiff in the Court below in C.S. No. 151 of 2004 happens to be the son of late Laxmidhara Chaudhury. Whereas the ''C schedule property as per the plaint averment is the exclusive property of late Gobinda Chaudhury, the common ancestor of the parties. Late Gobinda Chaudhury had three sons, namely, Niladri, Birabara & Laximidhar. Birabara had a son namely Sridhara & the deceased- Defendant No. 16 happens to be the son of late Sridhara. The present Petitioner is the wife of the deceased-Defendant No. 16. Since dissention arose in the'' family for effecting specific shares & when Defendant Nos. 1 & 2 attempted to grab forcibly the valuable property & declined for an amicable partition of the ''B'' & ''C schedule property, the Plaintiff, namely the Opp. Party No. 1 filed the suit for partition.

The Defendant Nos. 11, 13, 15 & 16 filed their joint written statement wherein it is their case that during the life time of Niladri, Birabara & Laxmidhara there was a notional partition amongst themselves & accordingly they remained in possession of the property separately. It is also their case that the heirs of Sridhara i.e., Defendant Nos. 10 to 14 were residing on a three storied pucca building which situates over the ''C'' Schedule property for more than 50 years which was constructed by late Sridhara & those Defendants have spent huge amounts of money in the said house & are all along paying the municipal tax etc. According to Defendants 11, 13., 15 & 16, they are entitled to a larger share over the ''C'' Schedule Property in case there will be a partition as they have spent money for the development of the residential house Standing on the ''C'' Schedule of the plaint.

The Defendant No. 16(a) who was substituted after the death of her husband filed written statement where she has stated that all the children of Sridhara were living in the ancestral dwelling house standing over the ''C'' Schedule property. It is her case that she married Sachidananda Chaudhury (D-16) in the year 2000 & remained in the said house where she was also blessed with a child which is known to everybody including the Plaintiff.

Order 22, Rule 4(2) of the C.P.C. clearly says that a person who has been made a party can only take such pleas which were appropriate to his character as a legal representative of the deceased. As I find the written statement which has been filed by the present Petitioner who has been substituted as Defendant No. 16 (a) is in no way different from the written statement which was earlier filed by her deceased-husband D-16 along with other Defendants. The only fact which the substituted Defendant No. 16(a) has averred in her written statement is about her marriage with D-16 in the year, 2000 & giving birth to a child in the house which stands on ''C'' Schedule Property. At the cost of repetition, I may again reiterate that the Defendant Nos. 11, 13, 15 & 16 in their written statement have categorically asserted that they are in possession of the ''C'' Schedule property & have spent huge sum of money for its maintenance & payment of taxes. In my humble view, the written statement which has been filed by the present Petitioner (D-16(a)) is in no way different from the written statement which has already been filed by deceased D-16 along with other Defendants 11, 13 & 15. The ratio propounded by Hon''ble the Apex Court in Sumtibai''s Case (Supra) is directly applicable to the facts of this case. In Sumitibai''s case (Supra) their Lordships of the Apex Court have categorically held that:-

Every party in a case has a right to file a written statement. This is in accordance with natural justice. The CPC is really the rules of natural justice which are set out in great & elaborate detail. Its purpose is to enable both parties to get a hearing. The Appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22, Rule 4(2), CPC cannot be construed in the manner suggested by Learned Counsel for the Respondent.

By applying the aforesaid ratio of the Apex Court, I am of the humble view that a party has a right to take whatever plea he/she wants to take & therefore the view taken by the Learned Court below does not appear to be correct. No useful purpose would be served by allowing the legal representatives of deceased-Defendant No. 16 to be impleaded but not allowing them to file written statement, as denial of the same would amount to violation of natural justice. For the reasons aforementioned, the impugned order at Annexure-4 dated 10.2.2011 in C.S. No. 151 of 2004 passed by the Learned Civil Judge (Sr.Divn.), 1st Court, Cuttack is set aside. The written statement filed by the substituted Defendant No. 16 (a) be accepted & thereafter the suit should proceed expeditiously in accordance with law.

The Writ Petition thus stands allowed.