Himachal Pradesh High Court
Anup Dutta vs Mohinder Singh & Others on 11 June, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP Nos. : 42 & 441 of 2014 in Civil Suit No.38 of 2005.
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Date of Decision : 11.06.2019.
Anup Dutta ...Plaintiff/Non-applicant.
Versus Mohinder Singh & others ...Defendants/applicants. Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes 1
For the plaintiff
r : Ms. Ambika Kotwal, Advocate.
For defendants
No.1 (a) & 1 (b) : Ms.Seema K. Guleria, Advocate.
For defendants No.1(c) : Mr.Divya Raj Singh Thakur,
Advocate.
For defendants Nos.
1 (d) and 1 (e) : Mr.Parneet Gupta, Advocate.
For defendants Nos.
2 (a), 1 (b) & 2 (d) : Ms.Anu Tuli Azata, Advocate.
For defendants Nos.
2 (c) & 3 : Mr.Rajnish Maniktala, Advocate.
Vivek Singh Thakur, Judge
Originally plaintiff Anup Dutta had filed a civil suit against defendant No.1 Mohinder Singh alias Mohan Inder Singh (now deceased), defendant No.2 Faiz Murtaza Ali and defendant No.3 Sayed Masoom Ahmed. During pendency of suit deceased defendant No.1 Mohinder Singh Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 13/06/2019 21:58:42 :::HCHP
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and defendant No.2 Faiz Murtaza Ali stand substituted through their legal heirs defendant No.1(a) to 1(e) and defendant No.2(a) to defendant No.2(c), respectively, who .
have taken different stands having adverse impact on claim of another/others. Hereinafter Mohinder Singh and Faiz Murtaza Ali have been referred defendant No.1 and defendant No.2, respectively.
2. Main suit has been filed for specific performance of agreement dated 3rd July, 2002 executed between plaintiff and defendant No.1 with respect to land/property comprised in khata No.74, khatauni Nos.104 to 109, kitas- 43, measuring 40-76-73 hectares, situated in Muhal Gopalpur, Tehsil Palampur, District Kangra, H.P. and seeking further declaration to the effect that mutual settlement documents purported to be mutual settlement dated 24th July, 2002, agreement/compromise dated 25th July, 2002 are void and inoperative against the right of the plaintiff having been got executed from the plaintiff under coercion and undue influence and seeking further declaration that sale deeds No.1054 dated 19th September, 2003, 1104 dated 3rd October, 2003 and 77 dated 17th January, 2004, registered in the office of Sub-Registrar, Palampur, District Kangra, H.P. through Power of Attorney ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...3...
of defendant No.1 in favour of defendant No.2 Faiz Murtaza Ali are wrong, void and inoperative against the rights of the plaintiff.
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2. After filing, on listing of the suit before the Registrar (Vigilance) on 12th July, 2005, notice to defendants was issued for 31st August, 2005. An application for interim orders was also listed before the Court on 14th July, 2005, therein also, notice returnable for 31st August, 2005 was issued to the defendants, and such notice was duly served upon defendant No.1 in person as is evident from the acknowledgment of registered post, signed by defendant No.1, available in Part-B of the Court record. Thereafter, Power of Attorney duly signed by defendant No.1 engaging Mr. Neeraj Maniktala, as his counsel, was also filed in the Registry of this Court on 29th August, 2005.
3. In the original written statement dated 28th August, 2005 filed on 20th September, 2005 by defendant No.1 to the plaint, passing of a decree as prayed by the plaintiff, was opposed on the ground that defendant No.1 had already transferred a portion of the suit land, measuring 11-39-82 hect., in favour of defendant No.2 by executing registered sale deeds referred in the plaint with further assertion that mutation in pursuance to those sale ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...4...
deeds also stood attested and defendant No.1 was not owner-in-possession of the entire suit property. It was further contended on behalf of defendant No.1 that plaintiff, .
being a very clever man and an instrument in the hand of local land mafia, had managed to procure different papers, signed by defendant No.1, through his (defendant No.1) one of the most trusted servants namely Nirmal Singh on the pretext that those papers were required to be sent to the counsel for use in the land deal entered between defendant No.1 and defendant No.2 and had used those papers to execute the agreement to sell, which is basis of filing of present suit and plea taken by the plaintiff in the plaint was opposed. This written statement was signed, verified and supported by an affidavit of defendant No.1 itself. This written statement was signed on 28th August, 2005 and filed on 20th September, 2005.
4. On 20th March, 2010, an application bearing OMP No.657 of 2009, filed by the plaintiff, was allowed for amendment of the plaint and amended plaint was taken on record, wherein basic nature and prayer of the suit along with its contention remained the same. Amended written statement to amended plaint was filed on 19th June, 2010. It was filed through Mr. Prithvi Raj, holder of 'General Power ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...5...
of Attorney' on behalf of defendant No.1, wherein also the stand of defendant No.1 remained the same.
5. Thereafter, in response to notice under Order 12 .
Rule 8 of the CPC served by plaintiff upon defendant No.1, original Power of Attorney, appointing Prithvi Raj as his Power of Attorney by defendant No.1, was also placed on record alongwith reply to the said notice, filed on 27th July, 2010.
6. During pendency of the suit original defendant No.2 Faiz Murtaza Ali had expired on 20.6.2013 whereupon applications bearing OMP (M) No.4009 of 2013 and 4010 of 2013 for bringing on record his legal representative i.e. defendants No.2(a) to 2 (d) were filed on 19th September, 2013. In response to these applications, legal heirs 2(a), 2(b) and 2 (d) have denied the right of proposed LR 2(c) Rohani Murtaza in the suit property, whereas proposed legal heir 2(c) Rohani Murtaza had denied the title of the proposed legal heirs 2(a), 2(b) and 2(d) in the suit property.
7. Pending adjudication aforesaid applications, OMP No.42 of 2014 was filed by defendant No.1 on 07th January, 2014 under Order 8 Rule 9 read with Section 151 CPC, seeking leave of the Court to file a fresh written statement, after rejecting the earlier written statement ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...6...
alleged to have been filed on his behalf. Proposed fresh written statement, admitting the claim of plaintiff, was also filed with this application, taking plea that defendants No. 2 .
and 3 by exercising their influence over the police and with the help of their Advocate had fabricated a false story against the plaintiff and manipulated the documents for their own benefit, and defendant No.1 had no role to play therein and also in lodging F.I.R against the plaintiff and subsequent events thereto by stating that lateron the said F.I.R was got cancelled by defendant No.1 by filing his own affidavit with further plea that as he never intended to lodge the said F.I.R and also that defendant No.1 had not entered into any agreement to sell out the suit land with any person except the plaintiff and the execution of the agreement with plaintiff on 3rd July, 2002 was admitted and claimed that he had no role in abduction of plaintiff, compromise dated 24.07.2002 and extortion of agreement from plaintiff on dated 25th July, 2002 and that he (defendant No.1) had never directed defendant No.3 to enter into any compromise with plaintiff and further that on contacting by the plaintiff on telephone he could not come to rescue the plaintiff due to pressure of defendant No.2 and defendant No.3 and the alleged incident dated 25th July, ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...7...
2002 had happened at the instance of Suksham Butail, defendant No.2 and defendant No.3 with the connivance of police of Patiala, Palampur and Dharamshala alleging .
further that the execution of GPA in favour of Suksham Butail and the sale deeds referred in plaint, alleged to have been executed by Suksham Butail on his behalf in favour of defendant No.2, are illegal, fake and fabricated, having no bearing upon the right, title and interest of defendant No.1 and it is also contended that power of attorney executed in favour of Prithvi Raj had not authorized him to get the mutation attested on behalf of defendant No.1 and further that the said power of attorney did not pertain to the parcel of the land for the mutatiton of which it was used. According to this proposed written statement, the aforesaid illegal sale deeds were handwork of defendants No. 2 and 3 and thus not binding upon defendant No.1. It is also contended in this written statement that permission under Section 118 of the H.P. Tenancy and Land Reforms Act, obtained in favour of defendant No.2, was also illegal. Ultimately prayer for disposing of the suit in favour of the plaintiff has been proposed in this proposed written statement.
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8. On 10.4.2014, OMP(M) Nos. 4009 and 4010 of 2013 were allowed and defendant No.2 (a) to 2(d) were ordered to be brought on record as legal representatives of .
defendant No.2 to represent his estate involved in the suit subject to all just exception.
9. Defendant No.1 had expired on 30th January, 2014. He was unmarried. His two brothers and parents had expired during his lifetime and on the basis of the Will, two legal heirs i.e. defendant No.1 (a) Ranjeet Singh and defendant No.1 (b) Charan Dass alongwith surviving natural heirs of defendant No.1 i.e. 1 (c) Sangeeta Devi, 1 (d) Rajinder Kaur were proposed to be brought on record by filing OMP(M) No.21 of 2014 on 26th April, 2014. In response thereto, proposed legal representative 1 (d) Rajinder Kaur had stated that one Smt. Nalini Kumari, being a daughter of predeceased brother of defendant No.1, was also natural legal heir of defendant No.1. Vide order dated 28th December, 2016, OMP(M) No.21 of 2014 was allowed and all persons mentioned as legal heirs of defendant No.1 in the said application and in reply thereto filed by proposed legal heir 1 (d) Rajinder Kaur, were ordered to be brought on record as defendants No.1 (a) to 1 (e). ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP
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10. Without waiting for their impleadment on record, defendant No.1 (a) Ranjeet Singh and defendant No.1 (b) Charan Dass, had preferred OMP No.441 of 2014, .
seeking leave of the Court to file fresh written statement to the suit on their behalf. Fresh written statement, proposed to be filed on behalf of respondents No.1 (a) and 1 (b) and placed on record with application, is the same as was proposed to be filed by defendant No.1 alongwith OMP No.42 of 2014.
11. In the aforesaid background, now two applications bearing OMP No. 42 of 2014 and OMP No.441 of 2014 are pending consideration which are being disposed of by this order. These applications are being pursued by defendants No.1(a) & 1(b) and plaintiff is also canvasing for allowing these applications whereas defendants No.2(c) and 3, represented by common counsel, are opposing these applications and defendant No.2(a), 2(b) and 2(d), represented by another but common counsel, though are denying the right of defendant No.2(c) in the suit property, but are also opposing these applications. Defendants No.1(d) and 1(e) are also towing the line of defendants No.2(a) to 2(d) and 3. Defendant No.1(c) represented by ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...10...
separate Advocate is also following the same course like defendants No.1(d) and 1(e).
12. I have heard learned counsel for the parties and .
have also gone through the record and case law cited by them. OMP No.42 of 2014 was signed on 25th December, 2013 and filed on 7th January, 2014, seeking permission therein to file fresh written statement. Plea taken by and on behalf of defendant No.1 is that two months prior to drafting this application he was surprised after knowing that his General Power of Attorney (GPA) holder Prithvi Raj had already filed written statement in June/July, 2010 without taking his instructions, without his consent and behind his back and that too with respect to whole suit land whereas he (Prithvi Raj) was having General Power of Attorney only with respect to the part of the suit land measuring 29-15-19 hect., whereas total suit land is measuring 40-76-73 hect. and thus said Prithvi Raj was neither competent nor authorized to file the written statement. It is pleaded that Prithvi Raj, attorney of defendant No.1, had acted on the advice and in active connivance with defendant No.2 and defendant No.3, being under their influence and control so as to cause wrongful harm to the plaintiff and applicant (defendant No.2) and to cause wrongful gain to defendants ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...11...
No.2 and 3 and before filing of the said written statement neither Prithvi Raj nor counsel engaged by defendant No.1 enquired anything from him (defendant No.1) and being ill, .
weak, vulnerable at that time he (defendant No.1) had neither intended to file any written statement nor was mentally prepared to involve himself in any kind of litigation and now for having regard to many hardships being faced by the plaintiff due to unauthorized act of said Prithvi Raj, he (defendant No.1) thought it proper to file correct version of his written statement so as to bringing on record point- wise reply to the plaint in order to cut the pending litigation to the minimum.
13. In reply to the application by the contesting defendants it is pointed out that though subsequent written statement to the amended plaint, filed on 19th June, 2010, was signed by Prithvi Raj on behalf of defendant No.1 being his general power of attorney however in this subsequent written statement filed through Prithvi Raj, the stand taken by defendant No.1 in his earlier written statement filed in 2005 was reiterated alongwith addition of reply on the same time to additional amended portion of the subsequent plaint. Now, fresh written statement, proposed to be filed on behalf of defendant No.1 is entirely ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...12...
contradictory to the original written statement filed by defendant No.1, and thus is not permissible under law.
14. In rejoinder filed by defendant No.1(a) and 1(b) .
it has been stated that being legal representatives of deceased defendant No.1, they have entered in his shoes and thus have a right to contest the case on the similar line which was adopted by defendant No.1 and therefore, they have right for insisting for leave of the Court to file a fresh written statement on behalf of defendant No.1, as proposed by the said defendant No.1 himself during his life time and the separate application bearing OMP No. 441 of 2014, filed by them, is also on the similar line having no conflict with the stand of deceased defendant No.1 Mohinder Singh. It is further contended that the written statement on behalf of defendant No.1 filed through General Power of Attorney Prithvi Raj and the separate written statement filed by defendant No.2 and 3 to the amended plaint were attested on the same day i.e. 10.06.2010 at Palampur and were entered at Sr. No. 644 and 645 in the Register of Oath Commissioner wherein identifier in both cases is one and the same Advocate, namely, Rajinder Goghra and the language of these two written statement is also similar indicating the connivance of Prithvi Raj, GPA of defendant ::: Downloaded on - 13/06/2019 21:58:42 :::HCHP ...13...
No.1, with defendants No. 2 & 3 to file written statement by deceitful means without knowledge and instruction of deceased defendant No.1 Mohinder Singh and the said .
defendant No.1 had never taken the stand as depicted in the written statement filed on his behalf and he had never filed the said written statement and the said written statement is purely manipulated by defendants No. 2 & 3 and further that defendants 1(a) & 1(b) had received the information under RTI on 26.02.2018 with regard to the application submitted to the Secretary (Revenue) to the Government of Himachal Pradesh wherein defendant No.2 has himself admitted the illegality and incorrectness of the permission granted to him to purchase tea garden under Section 118 of the H.P. Tenancy & Land Reforms Act and after knowing the act and conduct of GPA Prithvi Raj and connivance with defendants No. 2 and 3, defendant No.1 had cancelled the General Power of Attorney by issuing notice dated 28th December, 2013 through his Advocate Rajender Ghogra stating therein that the said GPA had been revoked few years back but he had come to know that the said GPA was still being misused by said Prithvi Raj and having nefarious designs and obnoxious acts and conduct of his GPA, defendant No.1 had served notices dated 25th ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...14...
December, 2013 and 4th January, 2014 upon counsel, so engaged by defendants No. 2 and 3, withdrawing Vakalatnama of his counsel, namely, Sh. Neeraj Maniktala, .
Rajneesh Maniktala and of Shri Rajinder Ghogra, Advocates. It is contended that apparently GPA Prithvi Raj, either misused the signed papers of defendant No.1 or got his signatures by deceitful means for the benefit of defendants No. 2 and 3 and to the detriment of the plaintiff, whereas deceased defendant No.1 had sympathy with the plaintiff who had to suffer a lot due to act and conduct of his self- proclaimed power of attorney having connivance with some mischievous persons and therefore, plaintiff has entered into a fresh agreement in addition to his earlier agreement dated 3rd July, 2002 by signing and executing an addendum on 24th January, 2014 at Patiala (Pb.) whereby both the parties have agreed to perform their respective part of obligations under the earlier agreement dated 3rd July, 2002.
15. Surprisingly, after filing the rejoinder, applicants/defendants 1(a) and 1(b) have also filed additional rejoinder to the application alongwith certain documents but without any leave or permission of the Court. Contents of these additional rejoinders and ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...15...
documents filed therewith are not being considered, as, such practice is unknown to procedure in law. Naturally new plea and facts were placed on record in original rejoinder(s) .
filed by and on behalf of defendants No.1(a) and 1(b). Defendant No.2(c) was permitted to file sur-rejoinder in response thereto, wherein it is contended that so called 'Addendum' alleged to have been executed at Patiala (Pb.) on 24th January, 2014 bears forged signatures of deceased defendant No.1 as it was executed in Patiala but attested at Rajpura, situated at a distance of 25 kilometers from Patiala and both witnesses to the agreement are from distant place i.e. Yol Cantt., the native place of the plaintiff, and no one has identified deceased Mohan Inder Singh, who was seriously ill during his last days and has expired on 30th January, 2014 and also that the agreement is coming from the custody of defendant No.1(a), who happened to be servant of deceased defendant No.1 and is also witness to the General Power of Attorney executed by defendant No.1 in favour of Prithvi Raj, duly registered with Sub Registrar, Patiala in the year 2004.
16. It is also averred in rejoinder that defendants No. 2 and 3 are misleading this Court since 2002 till date in present suit and in pending PIL No. 903 of 2003 titled as ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...16...
Deepak Mahajan & Others Vs. State of Himachal Pradesh & Others and therefore their claim is not sustainable in the eyes of law. In response thereto in sur-rejoinder it is .
contended that large number of petitioners in Deepak Mahajan's case have filed affidavits that the said PIL was filed on the instructions of the plaintiff and therefore, the said PIL is not a genuine one but a proxy litigation.
17. In rejoinder as well as in sur-rejoinder certain facts have been mentioned, raising new issues, which are not part of the pleadings of the application as well as reply and also not relevant for adjudication of the issue involved in present applications. Therefore, those averments of the applicants and non-applicants alongwith documents related thereto are not being discussed herein.
18. Issue involved in these applications is whether it is permissible to defendant No.1 or his legal representatives to file fresh written statement taking a converse stand to the pleadings to the written statement(s) filed earlier to the original plaint as well as amended plaint.
19. Learned counsel for the applicant-defendant Nos.1(a) & 1(b), besides reiterating the contention raised in application, rejoinder and additional rejoinder, has contended that amended written statement on behalf of ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...17...
defendant No.1 was filed through GPA but GPA was not filed and therefore, the said written statement could not have been taken on record for want of filing of GPA alongwith it .
and also that GPA, so produced on record lateron, was only valid for a part of the suit land and therefore, Prithvi Raj GPA was not holding power of attorney authorising him to act on behalf of the defendant including filing of written statement qua the entire suit land and thus for want of a valid GPA to deal with the entire suit land, amended written statement, on the basis of the said GPA, cannot be considered a written statement filed on behalf of defendant No.1 and further that after amendment of the plaint, earlier written statement filed under the signatures of defendant No.1, which was also not filed by defendant No.1 but was a procured one, has lost its significance as it is no more part of the record after allowing the amendment of the plaint and granting permission to file the fresh written statement to the amended plaint, and therefore, there is no valid and legal written statement on record filed on behalf of defendant No.1, as such, the objections of contesting non- applicants/defendants, alleging the filing of two written statements with contradictory stand, is not sustainable. ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP
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20. Referring to provisions of Order 22 Rule 4(2) CPC, it is further canvassed that defendants No.1(a) and 1(b), who have been made party after the death of .
defendant No.1, are entitled to take any defence and therefore, are entitled to file fresh written statement as proposed. It is further contended that as the first written statement filed in the year 2005 is not part of the record and the second written statement filed in the year 2010 through GPA is not filed by defendant No.1 or his authorized agent, there is no written statement on record and therefore, either written statement filed with OMP No.42 of 2014 is to be taken on record or written statement filed by his legal representatives defendants No.1(a) and 1(b) is to be taken on record.
21. Reliance has been placed on the judgment passed by Coordinate Bench of this Court in Vishwa Nath Vs. State of H.P. and another reported in Latest HLJ 2016 (HP) Suppl. 250 wherein by referring the judgment of the Allahabad High Court titled as Jagnarain and others Vs. Radhey Shyam Singh and another, AIR 2004 Allahabad 215 it has been held that once plaint has been allowed to be amended, unamended portion cannot be allowed to be taken into consideration.
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22. Plaintiff is also supporting the prayer made in these applications, as it is beneficial to him, as in fresh written statement, proposed to be filed on behalf of .
defendant No.1, case of the plaintiff is being admitted. Learned counsel for the plaintiff has contended that as the written statement filed through GPA is liable to be discarded for want of filing GPA alongwith it and even if the GPA, produced on record after issuance of notice under Order 12 Rule 8 CPC, is considered to be production of GPA on the basis of which written statement was filed then also the GPA was not authorized to file the said written statement for the reason that the said GPA, so produced on record, is for the land measuring about 29 hectares whereas entire suit land is measuring about 40 hectares and therefore, for want of legal and valid GPA written statement filed in the year 2010 through GPA is no written statement on behalf of defendant No.1. Therefore, defendant No.1 or his legal representatives are entitled to file fresh written statement.
23. Reliance has also been placed on the pronouncement of the Apex Court in case titled as Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, reported in AIR 2005 Supreme Court 439, wherein it ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...20...
is held that order 3 Rule 1 & 2 empowers the holder of Power of Attorney to act on behalf of the principal only in respect of acts done by the Power of Attorney holder in .
exercise of power granted by the instrument and acts done beyond that cannot be said to have been acts of the principal.
24. It is further contended that plea of fraud committed by GPA upon defendant No.1 in connivance with defendants No.2 and 3, has been specifically pleaded as required under order 6 Rule 4 CPC by stating in the application that documents/papers used for filing first written statement, have been obtained by fraud and referring Afsar Shaikh and another Vs. Soleman Bibi and others reported in AIR 1976 Supreme Court 163, it is canvassed that the plea taken by the applicants and deceased defendant No.1 is not general in nature but specific in nature and, therefore, written statements earlier filed on behalf of defendant No.1 are liable to be discarded with leave of the Court to file fresh one.
25. It is also contended that not only fraud has been specifically pleaded in the application but also a copy of FIR No.72/2005 dated 10th March, 2005 lodged by the plaintiff in Police Station Palampur with respect to the fraud ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...21...
committed by the GPA and defendants No.2 and 3 has been placed on record in the documents filed by him. Therefore, there is sufficient material on record to establish the fraud .
committed by the GPA, entitling defendant No.1 or his legal representatives 1(a) and 1(b) to file a fresh written statement. It has been contended on behalf of the plaintiff that objection, with respect to filing of written statement by GPA Prithvi Raj without having valid GPA as on that particular day, was taken by the plaintiff at the very initial stage in OMP No.442 of 2010 and OMP No.528 of 2010 by raising a specific objection that GPA so placed on record in reply to notice under Order 12 Rule 4 CPC did not authorize Prithvi Raj for filing written statement with respect to the entire suit land as the said GPA was with respect to the land measuring 29-15-19 hect.
26. The arguments advanced on behalf of defendant Nos.2(c), 3, 2(a), 2(b) and 2(d) are almost common and learned counsel for them have reiterated the ground taken for opposing these applications and have further submitted that learned counsel for contesting defendants have reiterated the objection taken in reply(ies) to the application(s) and have contended that perusal of original written statement filed on 20th September, 2005 by ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...22...
defendant No.1 himself and comparison thereof with the amended written statement filed on 17th June, 2010 after amendment of the suit in December, 2009 through GPA .
Prithvi Raj is clearly indicating that identical stand has been taken on behalf of defendant No.1 in both the written statements. Therefore, the GPA had not committed any fraud rather had reiterated the stand taken by defendant No.1 in original written statement filed by the said defendant itself. It is further contended that rather plaintiff and defendants No.1(a) and 1(b) are in collusion with each other and defendants No.1(a) and 1(b) who were the servants of deceased defendant No.1 but now claiming execution of Will in their favour by deceased defendant No.1, are playing in the hands of the plaintiff. It is further contended that fresh written statement proposed to be filed is not permissible being in total variance with the earlier written statement filed on behalf of defendant No.1 and as a total new plea has been taken in the proposed fresh written statement whereas stand converse to earlier written statement filed by the defendant is not permissible under the law and right and scope of filing written statement by legal representatives cannot be filing of the written statement contrary to the stand taken by deceased ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...23...
defendant No.1. Reliance in this regard, has been placed upon a judgment passed by the Apex Court in S. Malla Reddy Vs. future Builders Cooperative Housing Society and .
others reported in (2013) 9 SCC 349.
27. It is also contended that the suit was filed after execution of three sale deeds in favour of defendant No.2 whereby land measuring about 11 hectares had already been transferred in favour of defendant No.2 and defendant No.1 was owner in possession of the remaining land measuring about 29 hectares only and therefore, at the time of execution of GPA in favour of Prithvi Raj on 30th July, 2004, after execution of last sale deed on 17.01.2004, the area of land owned and possessed by Mohinder Singh, measuring approximately 29 hectares, has rightly been mentioned. Therefore, there is no deficiency in the GPA executed in favour of Prithvi Raj on the basis of which he had filed amended written statement to the amended plaint.
28. Other legal representatives of deceased defendant No.1 other than defendants No.1(a) and 1(b), who are arrayed as a party defendant No.1(c), 1(d) and 1(e), through their respective counsel, have supported the original as well as amended written statement filed by and ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...24...
on behalf of defendant No.1 and have concurred with the arguments advanced on behalf of defendants 2(a) to 2(d) and defendant No.3. It is further contended that in view of .
the order dated 11th May, 2011 passed in OMP No.528 of 2010 defendant Nos.1(a) and 1(b) are not entitled to raise the issue related to the validity of GPA and competency of GPA Prithvi Raj on the ground that the said Power of Attorney does not authorize Prithvi Raj to deal with the entire suit land.
29. Defendants opposing these applications have also placed on reliance on judgment passed by Jharkhand High Court in Shyam Sundar Bazaz vs. Sanwarmal Jalan and others, AIR 2005 Jharkhand 109, whereby an additional written statement by legal heirs, which was new and different from the original case of deceased defendant, was not allowed to be filed. Reliance has also been placed on judgment of the Apex Court in S. Malla Reddy Vs. future Builders Cooperative Housing Society and others, reported in (2013) 9 SCC 349, wherein defendants were not allowed to resile/withdraw from the admission made in the written statement by taking recourse to Order 8, Rule 9 or Order 6 Rule 16 CPC by seeking permission to file a fresh written statement. Judgment pronounced by the Apex Court in B.L. ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...25...
Sreedhar and others vs. K.M. Munireddy (dead) and others, 2003(2) SSC 355 has also been referred wherein it has been held that when one person by his declaration, act or .
omission has caused or permitted another person to believe something to be true and to act upon that belief, neither he nor his representatives shall be allowed in any suit or proceedings between himself and such persons or his representatives to deny the truth of that thing.
30. It is also contended that originally, in the applications, material facts have been concealed deliberately without mentioning that the original written statement was filed under the signatures of defendant No.1 itself but only referring the filing of written statement through GPA so as to give an impression that GPA has filed the written statement at first instance and also without stating other material facts which were disclosed and admitted in the rejoinder after raising the objections by the other defendants contesting the applications and therefore, it is further contended that for such deliberate act of concealing the material facts, applicants are not entitled to the relief claimed in these applications and to substantiate this plea reliance has also been placed on judgments in Sunil Poddar and others vs. Union Bank of India, 2008 (2) ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...26...
SCC 326 and Dalip Singh vs. State of Uttar Pradesh and others, 2010(2) SCC 114.
31. On behalf of the defendants contesting the .
applications, following pleadings of original written statement dated 23.8.2005 filed by defendant No.1, amended written statement dated 10.6.2010 filed by GPA holder of defendant No.1 and pleadings in written statement now proposed to be placed on record as a fresh written statement have been referred to demonstrate the contradictory stands/pleadings so as to canvass the dis- entitlement of filing proposed fresh written statement:
Sl. Pleadings of the Pleadings of Pleadings in the No. Original Written Amended Written Written Statement Statement dated Statement dated 10.6.2010 filed by sought to be 23.8.2005 filed GPA Holder of placed on by Defendant Defendant No.1. record with No.1. OMP No. 42/2014
1. Agreement to Agreement to sell No averments/ sell dated dated 22.4.2002 submissions 22.4.2002 executed between have been executed the Defendant made with between No.1 and respect to the Defendant No.1 Defendant No.2 said Agreement and Defendant for sale of the suit to sell.
No.2 for sale of property/land.
the suit
property/ land. Para-2
Para-2.
2. Three Sale Three Sale Deeds These sale
deeds dated dated 19.9.2003, deeds are
19.9.2003, 3.10.2003 & illegal.
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3.10.2003 & 17.1.2004 were
17.1.2004 were executed in
executed in favour of
favour of Defendant No.2.
Defendant
.
No.2. Para-1
Para-1
3. Application for Application for Defendant No.1
grant of grant of has never
permission for permission for applied for any
sale of the suit sale of the suit permission for
property was property was filed grant of
filed by by Defendant permission for
Defendant No.1 No.1 before the sale of the suit
before the Government of property.
Government of H.P.
H.P.
4. The The Government No application
Government of of H.P. granted for permission
H.P.
r granted permission to was made.
permission to Defendant No.1
Defendant No.1 for sale.
for sale.
5. The agreement The agreement The agreement
dated 3.7.2002 dated 3.7.2002 dated 3.7.2002
was was fraudulently was duly
fraudulently got got signed by the executed
signed by the Plaintiff through between the
Plaintiff through servants of Defendant
servants of Defendant No.1. No.1.
Defendant
No.1.
6. After coming to After coming to FIR No.409 of
know about the know about the 2002 was
fraudulent fraudulent lodged by
signatures on signatures on the Defendants
the agreement agreement dated No.2&3 at P.S.
dated 3.7.2002, 3.7.2002, an FIR Patiala.
an FIR No.409 No.409 of 2002
of 2002 was was lodged by
lodged by the Defendant No.1 at
Defendant No.1 P.S. Patiala.
at P.S. Patiala.
7. Agreement Agreement dated Defendant No.1
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dated 3.7.2002 3.7.2002 as is ready and
was fraudulently got willing to
fraudulently got executed. honour the
executed. agreement and
execute the
.
sale deed.
32. Issue with respect to nature of right of legal representative provided under Order 22 Rule 4 (2) CPC is no longer res-integra and in view of the pronouncement of the Apex Court in Gajraj vs. Sudha and others, 1999 (3) SCC 109, J.C. Chatterjee and others vs. Shri Sri Krishan Tandon and another, 1972 SC 2526, Bal Kishan vs. Om Parkash and another, 1986 SC 1952 and Vidyawati vs. Manmohan and others, 1995 SC 1653, it is settled that legal representative of deceased defendant is not entitled to raise plea by way of an additional written statement which is new and different from the original plea of the deceased defendant and he is authorized to file an additional written statement or statement of objections raising all pleas which the deceased defendant had or might have raised except those which were personal to the deceased defendant and in case he is having an independent right, title and interest in the property then he has to get himself impleaded in a suit as a party defendant other than the capacity of legal representative of deceased defendant for setting up his ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...29...
own right, title and interest in the lis by filing an application under Order 1 Rule 10 CPC to implead him in his independent capacity.
.
33. In the present case defendants No.1(a) and 1(b) have not been arrayed as the defendants in their independent capacity but as legal representative of deceased defendant No.1 and further nothing has been placed on record to establish that they are having any right for their impleadment in their independent capacity nor their impleadment as such has been preferred rather in the facts and circumstances available on record they are not entitled to be arrayed as a party defendant in their independent capacity, therefore they have no right to take a new plea by filing additional written statement or fresh written statement which is not only new but also inconsistent and materially different from the original stand of the deceased defendant No.1. Therefore, fate of application OMP No.441 of 2014 filed on behalf of defendants No.1(a) and 1(b) will depend upon the fate of OMP No.42 of 2014 filed by deceased defendant No.1. In case defendant No.1 is found to be entitled to file additional/fresh written statement only then defendants ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...30...
No.1(a) and 1(b) shall be entitled for filing such written statement.
34. For the reasons assigned hereinafter, I am of the .
considered view that deceased defendant No.1 was not entitled for filing fresh written statement in the facts and circumstances of the present case.
35. Before proceeding further it would be appropriate at this stage, to discuss authorization to Prithvi Raj to file amended written statement to the amended plaint as GPA of defendant No.1 executed in his favour on 30th July, 2004, on the basis of which written statement dated 10th June, 2010 was filed on 19th June, 2010.
36. It is admitted case of the parties that entire suit land comprised in khata No.74, khatauni No.104 to 109 is measuring 40-76-73 hectares and vide sale deeds dated 19th September, 2003, 3rd October,2003 and 17th January, 2004, executed on behalf of defendant No.1 through his Power of Attorney, land measuring 11-39-82 hect., was transferred in favour of defendant No.2 before filing of the suit on 2nd July, 2005. General Power of Attorney in favour of Prithvi Raj was executed after execution of sale deeds and before filing of the suit. At the time of execution of this GPA, after transfer of land to defendant No.2 vide aforesaid ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...31...
recorded sale deeds, defendant No.1 was owner in possession of the suit land measuring approx 29 hectares. In GPA in question exact measurement of land has not been .
mentioned but it is mentioned that GPA, with respect to land comprised in khata No.74, khatauni No.104 to 109, measuring approx 29-15-19 hectares, was executed in favour of Prithvi Raj by deceased defendant No.1. Because of execution of the aforesaid sale deeds, defendant No.1 was having right to file written statement only with respect to the remaining land which was approximately 29 hectares. Therefore, for filing the written statement through GPA, authorization to file written statement for the remaining land was required and from the GPA placed on record in response to notice under Order 12 Rule 8 CPC it is evident that the said GPA, executed in favour of Prithvi Raj, was for that much land only which was being owned and possessed by defendant No.1. Therefore, it is incorrect to say that Prithvi Raj was not having valid GPA for entire land belonging to defendant No.1 at the time of filing written statement dated 10th June, 2010 filed on 19th July, 2010. This GPA contains Clause 3 authorizing Prithvi Raj to file, prosecute and defend all civil, revenue and criminal cases in all Courts on behalf of defendant No.1. ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP
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37. It is also relevant to notice here that at earlier point of time, similar objections were raised by the plaintiff after filing of this written statement through GPA by filing .
OMP No.442 of 2010 and 528 of 2010 praying for not taking on record written statement filed on behalf of defendant No.1 through GPA Prithvi Raj. The said plea of the plaintiff was rejected by this Court vide order dated 11th May, 2011. There is nothing on record that the said order was ever assailed by either of party and now under the garb of filing application under Order 8 Rule 9 CPC the said issue cannot be reopened.
38. In facts and circumstances, available on record, it cannot be inferred that GPA Prithvi Raj has committed any fraud upon defendant No.1, at the time of execution of General Power of Attorney or filing Written Statement to the amended plaint. Therefore, judgment in Afsar Shaikh (supra) is not applicable in present case.
39. So far as competence of Prithvi Raj for filing the Written Statement, with respect to entire suit land, is concerned, that has already been discussed herein before, as also in the order dated 11.5.2011, passed in OMP No.528 of 2010, he had already been held competent to file the Written Statement on behalf of defendant No.1, with ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...33...
respect to the land in ownership and possession of defendant No.1 at that time. Therefore, ratio of law laid down in Janki Vashdeo Bhojwani's case is not applicable in .
present case.
40. Parties to lis are not illiterate, rustic villagers, rather they are well conversant with the legal complicacies of their actions and inactions and they are also found to be indulging in execution of various documents, including General Power of Attorneys, Agreements to Sell, Sale Deeds, etc. and also filing/ lodging complaints/FIRs with the authorities. Service upon defendant No.1 Mohinder Singh was effected in the month of August, 2005. Thereafter, Power of Attorney (Vakalatnama) on his behalf was filed in the Registry of this Court on 29.8.2005 and Written Statement on his behalf, under his signatures, dated 23.08.2005, was filed on 20.9.2005. Defendant No.1, during his life time, at any stage of the suit, has not disputed service of summons of suit upon him. Filing of Power of Attorney, duly signed by him, engaging Mr. Neeraj Maniktala, Advocate, as his counsel, has also not been disputed, specifically, rather it is stated that the said counsel was engaged but through defendants No.2 and 3. In his application filed for filing fresh Written Statement, he ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...34...
is completely silent about the Written Statement filed under his signatures, at the first instance, in September, 2005. On pointing the filing of the first Written Statement, under .
his signatures, in reply to OMP No.42 of 2014, filed by the contesting defendants in 2017, it has been clarified that the said Written Statement was manipulated by defendants No.2 and 3. Defendant No.1 had expired on 30.1.2014 and during his life time, he had not commented upon the circumstances, under which the Written Statement, at the first instance, was filed in September, 2005. However, in the pleadings of defendants No.1(a) and 1(b), filed being Legal Representatives of defendant No.1, it is contended that the said Written Statement was result of manipulation of defendants No.2 and 3.
41. In OMP No.42 of 2014, preferred by defendant No.1 himself, in January, 2014, it has been averred that he (defendant No.1) was surprised after knowing that his General Power of Attorney holder Prithvi Raj had already filed Written Statement in June-July, 2010, without taking his instructions, consent but behind his back. In the proposed fresh Written Statement, it is proposed stand of defendant No.1 that since beginning he intended to favour the plaintiff, as he had entered into an Agreement to Sell ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...35...
with him, as claimed in the plaint and, therefore, he was not keen to contest the case. He was served in 2005, and even if his plea is to be taken as true that he came to know, in .
October/November, 2013, about filing of Written Statement through his General Power of Attorney, then also eight years long period is not a small period. Keeping in view the acquaintance of defendant No.1 with the Court procedures, it is unbelievable that for eight years, after his service, he did not bother to enquire about the status or fate of the suit filed by the plaintiff, that too when it was claimed by him that he was intending to help the plaintiff, who, according to his fresh stand, had suffered a lot, on account of connivance of his GPA with original defendants No.2 and 3. Not only this, it has also come on record that cross FIRs were also lodged by plaintiff as well as defendant No.1 against each other. According to defendant No.1, the FIR on his behalf was manipulated by defendants No.2 and 3, which lateron was withdrawn by him, as he intended to favour the plaintiff. Surprisingly, despite having intention to favour the plaintiff, by executing the sale deed in his favour, defendant No.1 Mohinder Singh did not agree for resolution of dispute, raised by the plaintiff in the present suit, for such extraordinary unexplained long period. ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP
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42. Execution of Power of Attorney in favour of Prithvi Raj has also not been disputed, rather claim is that the said Power of Attorney was revoked in the year 2013, .
after noticing the act and conduct of the said Power of Attorney, which, according to defendant No.1, was contrary to his will and desire. In any case, on the day of filing the Written Statement, Prithvi Raj was holding valid General Power of Attorney of the land, which was in ownership and possession of defendant No.1 at that time, as some portion of the suit land had already been transferred in favour of defendant No.2, on account of sale deed in his favour, through one Suksham, who was holding Power of Attorney in his favour on behalf of defendant No.1. In the Power of Attorney executed in favour of Prithvi Raj, area of land owned and possessed by defendant No.1 has been mentioned approximately 29 hectares. As noticed supra, said Power of Attorney was executed after execution of sale deeds of land measuring about 11 hectares, in favour of defendant No.2, out of the total land measuring about 40 hectares.
43. Though it is pleaded on behalf of defendant No.1 that said Suksham has manipulated the documents, in connivance with defendants No.2 and 3, in order to harm ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...37...
the plaintiff, for the benefit of defendant No.2, sale deeds executed in the year 2003 through said Suksham have been never been assailed by defendant No.1. Defendant .
No.1 has neither denied the receipt of sale consideration nor has any foul play played by his Power of Attorney Suksham, on his behalf to grab the sale consideration, been alleged at any point of time. Further, no criminal or civil action, ever taken by defendant No.1 against said Suksham and defendants No.2&3, has been brought on record till date.
44. Even if fresh version propounded on behalf of defendant No.1 is accepted to be true, then also sale deeds executed in favour of defendant No.2 on behalf of defendant No.1, through Power of Attorney Suksham, were in the knowledge of defendant No.1, since at least 2005, even if his fresh version is accepted to be true. But, till date no challenge to the same has been laid down, despite taking plea in the fresh Written Statement proposed to be filed that defendant No.1 was interested to honour the agreement to sell executed in favour of plaintiff. Even otherwise, in case defendant No.1 had been really intending to favour the plaintiff, there was none to prohibit him from executing the sale deed in favour of plaintiff at least qua ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...38...
remaining suit land, which was in his ownership and possession, after excluding the area involved in the three sale deeds executed in favour of defendant No.2.
.
45. In the aforesaid facts and circumstances, it is unbelievable to accept that after the service of summons in the year 2005 till October/November, 2013, defendant No.1 was not having any knowledge about the filing of Written Statement by Prithvi Raj, being his General Power of Attorney, that too without taking his instructions or without his consent or behind his back.
46. rDefendant No.1, during his life time, remained silent about the Written Statement filed under his signatures, at the first instance, immediately after service of summons upon him. The amended written statement was filed on the same line, which was taken in the first Written Statement. As held by a Coordinate Bench of this Court in Vishwa Nath (supra), relied upon by applicants, it is true that once amended pleadings are on record, unamended pleadings are not to be taken into consideration. However, it does not preclude the Court or any other party to have comparison of unamended pleadings, i.e. Written Statement filed at first instance in present case, to take into consideration for comparison with ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...39...
the subsequent amended pleading, i.e. Written Statement filed through GPA Prithvi Raj, so as to ascertain as to whether GPA had acted upon and had filed the amended .
Written Statement in consonance with the stand taken by the original defendant himself in the original unamended Written Statement. Therefore, plea raised on behalf of defendants/applicants No.1(a) and 1(b) and plaintiff that after amendment of the plaint, earlier Written Statement has lost its significance and is no more part of the record and, thus, cannot be taken into consideration, is not sustainable, as the said Written Statement is not being taken into consideration for deciding the suit but for determining the fact as to whether Written Statement filed by the General Power of Attorney is in consonance with the stand already taken by defendant No.1 in his Written Statement filed under his signatures or not.
47. On comparison Written Statement filed by Prithvi Raj, as General Power of Attorney, on behalf of defendant No.1 cannot be said to have been filed contrary to his instructions, against his will, without his consent or behind his back, rather, it is found to be in consonance with the original stand of defendant No.1.
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48. It is further stand of defendant No.1 in OMP No.42 of 2014 that his Power of Attorney Prithvi Raj had acted on advice and in active connivance with defendants .
No.2 and 3, whereas he (defendant No.1) had neither intended to file any Written Statement nor was mentally prepared to involve himself in any kind of litigation and now having regard to many hardships, being faced by the plaintiff, he thought it proper to file correct version of his Written Statement. As discussed, herein above, the said plea of defendant No.1 is not only unsustainable, but also contrary to the facts and circumstances established on record. In any case, if he was not intending to file any Written Statement, he could have made such statement through his counsel and could have acceded to the claim of the plaintiff, immediately after service of summons upon him. There is nothing on record, indicating that he was ever prevented by anybody from appearing in the Court or filing a Written Statement favouring the plaintiff or making any statement acceding to the claim of the plaintiff in the present suit. He has come forward with fresh Written Statement, after eight years of his service in the suit, with a prayer to decree the suit in favour of the plaintiff, but ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...41...
without commenting upon or assailing the sale deed executed in favour of defendant No.2.
49. Considering the entire facts, plea taken in the .
application filed by defendant No.1 appears not only to be an afterthought, but also neither convincing nor confidence inspiring.
50. Once it is established that Written Statement, at the first instance, was filed by defendant No.1 himself and the subsequent amended Written Statement filed by Prithvi Raj, as his Power of Attorney, is on the same line, the plea that amended Written Statement filed by Prithvi Raj, on behalf of defendant No.1, and the separate Written Statement filed by defendants No.2 & 3 to the amended plaint, which were attested on the same day at Palampur and were entered at Serial Nos.645 and 644, respectively, in the Register of Oath Commissioner, and the identifier in both the cases was one and the same Advocate and also that the language of the Written Statements was also similar, indicate the connivance of Prithvi Raj and defendants No.2&3, is also not sustainable, as the subsequent amended Written Statement is in consonance with the initial stand taken in first Written Statement filed under the signatures of defendant No.1. ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP
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51. Pleas that defendant No.1 was not having permission under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, in his favour, at the time of .
execution of three sale deeds and that General Power of Attorney in favour of Prithvi Raj had been revoked in the year 2013 and that defendant No.1 has served notice upon his counsel, withdrawing his Vakalatnama, are of no impact upon adjudication of the present applications, as the basic question involved herein is that as to whether defendant can be permitted to file written statement contrary to the stand already taken in his earlier Written Statement. As has been held by the Apex Court in S. Malla Reddy (supra), the defendants cannot be allowed to resile/withdraw from the admission made in the Written Statement, by taking recourse to Order VIII Rule 9 or Order VI Rule 16 of the Code of Civil Procedure.
52. In appropriate cases, where a genuine ground for filing fresh Written Statement is made out, defendant(s) may be permitted to file fresh/additional Written Statement, as provided under Order VIII Rule 9 of the Code of Civil Procedure. It is to be kept in mind that provision of Rule 9 of Order VIII starts with negative clause, declaring that no pleading subsequent to Written Statement by a defendant, ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...43...
other than by way of defence to set off or counterclaim shall be presented, except by leave of the Court. No doubt, later part of this Order empowers the Court to require, at .
any time, a Written Statement or additional Written Statement from any of the parties, if it thinks fit to do so, but the fact remains that Rule 9 starts with prohibitive language.
53. In present case, it is not a suit simpliciter against one defendant or more than one defendant, where all the defendants are having one and the same stand, rather here is a suit where not only the original defendants were claiming independent right, title or interest on the respective portion of suit land, but also the legal heirs of defendant No.1 as well as defendant No.2 are having clash of interest on account of their respective stands. In case the sole defendant or all the defendants would have decided to accede to the claim of the plaintiff, there may not have been any necessity or occasion to file fresh Written Statement, rather the suit would have been compromised between the parties. In present case, certain portion of land stands transferred in favour of defendant No.2 qua which his legal heirs are fighting with each other. With respect to remaining portion of the suit land, legal ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...44...
representatives of defendant No.1 are having converse stand. On the basis of earlier Written Statement(s) filed by and on behalf of defendant No.1, defendant No.2 had taken .
a position. Now suddenly, at this stage, defendant No.1 or his legal heirs cannot be permitted to shift their stand contrary to their earlier stand. In any case, if defendant No.1 or his legal representatives intend to favour the plaintiff, no one can stop them from deposing in favour of the plaintiff, while appearing in the witness box, however, veracity and admissibility of their such deposition is to be evaluated and assessed on the basis of pleadings of the parties and with comparison to evidence led by other defendants, but in accordance with law.
54. Had there been reliable, cogent and tangible material on record, establishing that none of the Written Statements, i.e. first one or amended, have been filed by defendant No.1 or under his instructions, defendant No.1 or his legal representatives would have been definitely entitled for filing fresh Written Statement. But the facts are establishing contrary.
55. In view of above discussion, considering the entire facts and circumstances, referred herein above, and the case law cited by the parties, I am of the considered ::: Downloaded on - 13/06/2019 21:58:43 :::HCHP ...45...
opinion that no ground for allowing OMP No.42 of 2014 is made out and, hence, the same is dismissed.
56. As the application filed by the original defendant .
has been found to be devoid of merit, as discussed supra, his legal heirs cannot be permitted to travel beyond the scope of Written Statement filed by or on behalf of defendant No.1, which is already on record. Therefore, their application, being OMP No.441 of 2014 is also dismissed.
57. Observations made hereinabove shall not have any impact on merits of respective pleas taken by the parties in the main suit, but shall be construed to have been discussed for adjudication of aforesaid applications only.
Applications stand disposed of.
( Vivek Singh Thakur )
June 11, 2019 Judge
(sd)
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