Punjab-Haryana High Court
Gurnam Singh vs Rattan Kaur And Ors. on 22 July, 1999
Equivalent citations: (1999)123PLR260
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The short question that arises for consideration is, what pleas the legal representatives of a deceased defendant can raise in their capacity as heirs of the deceased defendant.
2. This question is hardly res integra and has been consistently settled by various pronouncement of Hon'ble Supreme Court of India. The law in relation thereto was reiterated in the judgment of the Supreme Court in the case of Vidya Wati v. Man Mohan and Ors., (1996-1)112 P.L.R. 97, where the Court held as under:-
"Therefore, the said interest is co-terminus with his demise. Whether the petitioner has independent right, title and interest de hors and claim of the first defendant is a matter to be gone into at a latter proceedings. It is true that when the petitioner was impleaded as a party - defendant, all right under Order 22 Rule 4(2), and defences available to the deceased defendant become available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist , the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the Court below has taken rightly.
This Court in Bal Kishan v. Om Parkash and Anr., has said thus:-
"the Sub-rule (2) of Rule of Order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent."
The same view was expressed in Jagdish Chander Chatterjee and Ors. v. Sri Kishan and Anr., A.I.R. 1972 S.C. 2526 wherein this Court said:
"The legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, 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. Indeed this does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the Court impleading them not merely as the LRs, of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title."
3. In order to apply the above principles to the present case, reference to basic facts would be necessary. A suit for possession by way of specific performance of the agreement dated 15.2.1990 regarding the property, subject matter of the suit was filed on 24.3.1994 by the plaintiff Gumam Singh against the defendant. On 24.6.1996 Desa Singh, the defendant, died and consequently on 2.8.1996 the legal representatives of Desa Singh were brought on the record. Evidence of the plaintiff was concluded on 11.2.1997 and defendants' evidence was closed on 26.4.1997. The case was fixed for August, 1997 for arguments when an application for amendment of the written statement was filed by the legal representatives on 2.8.1997. Vide this application the legal representatives wanted to amend the written statement so as to take up the plea that the property in dispute was an ancestral coparcenary/Joint Hindu Family property and the proposed alleged sale vide the agreement in question was neither for consideration nor for family's legal necessity. It was further averred that they were impleaded legal representatives but were not granted opportunity to file amended written statement.
4. The application was opposed by the plaintiff who took up the plea that the legal representatives could take up the pleas which were taken by Desa Singh and no fresh written statement could be filed. It was also contended that the pleas taken by Desa Singh in his written statement would bind the legal representatives as they had not terminated with the death of the deceased. The learned trial Court vide its order dated 29.11.1997 allowed the application subject to payment of Rs.500/- as costs. It is this order which has been assailed before this Court in the present revision.
5. Though various contentions have been raised on behalf of the petitioner in relation to application being belated, the legal representatives' capacity to amend the written statement in the present manner and the fact that application was nothing but an attempt to delay the proceedings in the suit.
6. One fact which cannot be disputed is that the legal representatives of deceased Desa Singh have not been impleaded as defendant-party to the suit in their own rights. They are on the record only as legal representatives of the deceased Desa Singh. In other words, the legal representatives have been brought on record to protect the character and interest pleaded by the deceased to the suit. If any pleading intended to be raised by the legal representatives in addition to or in conflict thereto, it will be obligatory on the part of the applicant-legal representatives to pray for their implementation as contesting parties to the suit in their own rights, which, admittedly, is not the case herein. The legal representatives were brought on record as back as in 1996 and have contested the suit in that capacity for all this time and as such were bound by the pleas taken by the deceased unless they took recourse to remedies available to them in law.
7. In view of the well established principles of law by the Hon'ble Apex Court, I do not consider it necessary to discuss the merits or de-merits of other contentions raised on behalf of the parties. Thus, it will also be not necessary to mention some of the judgments referred by the respective parties in that regard. At this stage, it may be appropriate to refer to the judgment of the Supreme Court in the case of J.C. Chatterjee and other v. Shri Sri Kishan Tandon and Anr., A.I.R. 1972 Supreme Court 2526, wherein the Court held as under:-
"Therefore, the only contentions that they could put forward in the second appeal by the landlord were the contentions appropriate to their representative character and not one which was personal to the deceased. The defence of want of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives."
8. Whether the property was ancestral or not was a plea which could have been taken by the deceased Desa Singh. He opted not to raise such a plea. The legal representatives would obviously be not in a position to raise that plea in their capacity as legal representatives. The matter could have been different if they were impleaded as contesting defendants in the suit in their own rights.
9. The learned trial Court has noticed in the impugned order that the delay in filing the application could not prove fatal to the case of the applicants and also that the law relating to amendment has to be construed very liberally as per the enunciated law. These grounds would be of relevancy only if the amendment sought for was otherwise legally permissible. Once the applicant could not raise that plea in that character as per record, these considerations would become secondary and cannot form basis for a proper legal determination of the application.
10. I am of the considered view that by allowing the amendment, in the facts and circumstances of the case, the learned trial Court has fallen in error of jurisdiction. The learned Court has exercised the jurisdiction which as per the above settled law is an error in law apparent on the face of the record. Consequently, this revision petition is allowed, the order dated 29.11.1997 passed by the learned Trial Court is set aside and the application filed by the applicant under Order 6 Rule 17 C.P.C. for amendment of the written statement is dismissed. The learned Trial Court is requested to proceed with the suit in accordance with law.