Jharkhand High Court
Shyam Sunder Bazaz vs Sanwarmal Jalan And Ors. on 12 January, 2005
Equivalent citations: AIR2005JHAR109, [2005(2)JCR115(JHR)], AIR 2005 JHARKHAND 109, 2005 AIR - JHAR. H. C. R. 1058, 2005 A I H C 2747, (2005) 2 JCR 115 (JHA), (2005) 4 JLJR 372
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
ORDER Narendra Nath Tiwari, J.
1. In this writ application, the petitioners have prayed for quashing the order dated 17.5.2004 passed by the Additional Munsif at Ranchi in Eviction Title Suit No. 15 of 1997 whereby the Court below has refused to accept the additional written statement filed by the defendant No. 2-petitioner and also the order dated 19.2.2004 rejecting the prayer for recalling the plaintiffs witnesses for their cross-examination and directing the defendant-petitioner to produce their evidence.
2. The petitioner is the substituted defendant No. 2 in the said suit. The said suit for eviction was filed by the plaintiff-respondent against M/s. Jethmal Satyanarayan in the Court of the Munsif praying a decree for ejectment of the defendant from the suit premises on the ground of default in making payment of rent under the provisions of Section 11(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as 'the said Act' or 'the B.B.C. Act'). The plaintiff's case is : that he is the landlord and the defendant is a tenant to in a portion of the suit premises consisting of two shop rooms. In the year 1987, the House Rent Controller had fixed the fair rent for the suit premises at the rate of Rs. 1759/-per month under the provisions of Section 5 of the said Act. Thereafter, by mutual consent the monthly rent was enhanced to Rs. 2.150/- per month from 1.11.1990 and again to Rs. 2.250/- per month from 1.10.1992 and again Rs. 2.500/- per month from 1.11.1993. The plaintiff asserted that the defendant defaulted in payment of monthly rent from time to time and has made himself liable for eviction on the ground of default in making payment of rent.
3. The sole defendant M/s. Jethmal Satyanarayan through its proprietor, Satyanarayan Bajaj appeared and filed written statement contesting the claim. It was stated that the plaintiff went on coercing the defendant to enhance the rent at an exorbitant rate from Rs. 2.000/- to Rs. 2.500/- per month and also to pay pagri (Salami) to the tune of Rs. 1,50,000/- and the demand of the plaintiff being illegal, the defendant refused to accept the same. The plaintiff thereafter maliciously filed the suit for eviction. The defendant claimed that he never defaulted in payment of rent and there was no ground for eviction.
4. During the pendency of the suit, the sole proprietor of the defendant firm, Satyanarayan Bazaz died and in his place his legal heirs were substituted as defendants, including the petitioner. He was impleaded as defendant No. 2. The petitioner after his appearance, filed an additional written statement dated 11.2.2004 contesting the claim of the plaintiff. In variation of the original written statement, the petitioner set up a case of independent tenancy right of Ram Karan Bazaz, another son of Satyanarayan Bazaz, over the portion of the suit premises which was not pleaded in the written statement of the deceased-defendant. The said new additional plea of the defendant No. 2 petitioner was objected to by the plaintiff-respondent by filing an application dated 19.2.2004 wherein it was prayed to ignore the same as the said written statement sought to set up a new case in addition to what was pleaded in the written statement filed by his predecessor in interest late Satianarayan Bazaz.
5. The plaintiff-respondent further prayed that the legal representative of the deceased-defendant including the defendant No. 2 petitioner can not be allowed to lead any further evidence contrary to the pleadings of the original defendant and for directing them to proceed with the litigation from the stage of death of the deceased-defendant--Satyanarayn Bazaz, i.e., the stage of further evidence. The defendant-petitioner had filed rejoinder, inter alia, stilting that the petitioner has right to file additional written statement taking all the grounds including what was left by the deceased-defendant.
6. After hearing the parties, the learned Court below by the impugned order held that the additional written statement filed by the defendant No. 2-petitioner has raised a new and different plea regarding the tenancy right of Ram Karan Bazaz which is not permissible. The Court below thus rejected the said additional written statement. He also rejected the petitioner's prayer for recalling the plaintiff-witnesses for their further cross-examination in the light of the said proposed additional written statement.
7. Mr. Pandey Neeraj Rai appearing on behalf of the petitioner submitted that the impugned order passed by the learned Court below is wholly arbitrarily, erroneous and contrary to the provisions of law.
8. Learned counsel submitted that under the provisions of Order XXII Rule 4 of the Code of Civil Procedure, such legal representative added as defendant may file additional written, statement not only adopting the written statement filed by the predecessor in interest, but also taking additional grounds independently available to him. Learned Counsel relied on a decision of the Supreme Court in case of Balkishan v. Om Prakash and Anr., reported in AIR 1986 SC 1952, with specific emphasis on paragraph 3 of the decision, which reads thus :
Order XXII Rule 4 of the Code of Civil Procedure, 1908 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased-defendant to be made a party and shall proceed with the suit. Since the action in this case related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative Bal Kishan of the deceased Musadi Lal on record. Sub-rule (2) of Rule 4, Order XXII, authorizes any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased-defendant. The said sub-rule authorizes the legal representative of a deceased-defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant (defendant) had or could have raised except those which were personal to the deceased-defendant or respondent. In the instant case Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased-respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased-defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased-defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chatterjee v. Sri Kishan, (1973) 1 SCR 850 : (AIR 1972 SC 2526). The relevant part of that decision at page 854 (of SCR): (at pp.2528-29 of AIR) reads thus :
"Under Sub-clause (ii) of Rule 4 of Order XXII, Civil Procedure Code, any person so made a party as a 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 representatives 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 legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."
9. Learned counsel further submitted that the petitioner in the instant case cannot only be treated as a legal representative but he may be also treated as an independent-defendant in his own capacity allowing him to set up his own independent title in order to avoid a separate suit on the basis of such title. Learned counsel submitted that the Court below, while passing the impugned order has taken a hyper technical view and erroneously rejected the additional written statement filed by him.
10. Mr. P.K. Prasad, learned counsel appearing on behalf of the plaintiff-respondent on the other hand submitted that the impugned order is well considered, sound and legal and there is absolutely no infirmity in the same warranting intervention of this Court. Learned counsel urged that it is well established principle of law that a legal representative substituted in place of the deceased-defendant are bound by the pleadings of the predecessor as they have to step into the shoes of the deceased. He submitted that legal representative could be allowed to proceed only from the stage where the death of the defendant had taken place and that the legal representatives cannot be allowed to file any written statement setting up a new case. Learned counsels placed reliance on a decision of the Apex Court in Gajraj v. Sudha and Ors., reported in (1999) 3 SCC 109. He also cited the decision, Ramgopal and Ors. v. Khiv Raj, reported in AIR 1998 Raj 98 and also the earlier decisions, one of Allahabad High Court in Ram Ugrah Ojha and Anr. v. Ganesh Singh, reported in AIR 1940 All 99 (FB) and that of Dareppa Alagauda v. Mallappa Shivalingappa, reported in AIR 1947 Bom 307. The learned counsel asserted that the order of the learned Court below is in accordance with the established principles of law and the same is valid and sound.
11. After hearing the parties and perusing the records, I find that the plea which is sought to be taken by the petitioner by way of an additional written statement is new and different from the original case of the deceased-defendant. A case of an independent tenancy in favour of Ram Karan Bazaz in respect of a portion of the suit premises cannot be set up by the defendant-petitioner as a legal representative of the deceased-defendant as no such case was pleaded in the written statement filed by the deceased. In Bal Kishan v. Om Prakash, (supra) cited by the learned counsel for the petitioner, it has been specifically held that Sub-rule (2) of Rule 4 of Order XXII of the Code of Civil Procedure authorizes the legal representative of the deceased-defendant to file an additional written statement or statement of objection raising all pleas which the deceased-defendant had or might have raised, except those which are personal to the deceased-defendant. It has further been held that it is permissible for the learned Court in a probate case to implead the heirs of deceased-defendant also in their personal capacity thereby avoiding a separate suit for a decision on the independent title. The Supreme Court in Vidyawati v. Man Mohan and Ors., reported in AIR 1995 SC 1653 followed the principle laid down in the said Bal Kishan v. Om Prakash, (supra) and also in Jagdish Chander Chatterjee v. Sri Krishan referred to in the Balkishan's case, holding that the legal representative having independent right, title and interest in the property has to get himself impleaded in a suit as party defendant for setting up his own right, title and interest. It has been further held that in such case, it is always open to the concerned legal representative to file an application under Order I, Rule 10 of the Code of Civil Procedure praying his addition as party in his independent capacity and thereafter to file an additional written statement asserting his own right.
12. There is nothing on record to show that the petitioner has made any such application seeking his addition as a defendant in his own capacity before filing his additional written statement with a new plea in defence.
13. In view of the aforesaid discussions and also in view of the established principle of law, I do not find any patent error or illegality in the impugned order of the learned Court below warranting interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India. Accordingly, this writ petition is dismissed. However, the petitioner, if so advised, may file an application under Order I, Rule 10 of the Code of Civil Procedure seeking his impledment as a defendant in his independent capacity which may be considered by the learned Court below in accordance with law or as may deemed fit for the ends of justice and for avoiding multiplicity of litigation. If such impleadment is allowed, it will be open for the petitioner to set up his own independent defence or to take any other plea available to him, in his independent capacity as a defendant.