Hakam Singh And Others vs Isham Singh And Others on 5 May, 2009

[Cites 15, Cited by 2]

Punjab-Haryana High Court

Hakam Singh And Others vs Isham Singh And Others on 5 May, 2009

The plaintiffs have approached this Court challenging the order dated 19.2.2009, whereby the application filed by respondents No. 1 to 3, being legal representatives of deceased-Nihalo for filing additional written statement, after they were brought on record as legal representatives after the death of Nihalo, has been accepted.

Briefly, the facts are that the predecessors-in-interest of the petitioners filed a suit for declaration and permanent injunction to the effect that they are owners in possession of the suit property, which was owned by Sadhu Singh. They further claimed in the pleadings that Smt. Sumerte was sister of Sadhu Singh and she had two daughters, namely, Nihalo and Parsini. Sumerte had pre-deceased Sadhu Singh. Initially, the suit was filed by the predecessors-in- interest of the petitioners against Nihalo and Parsini. It was claimed that as the predecessors-in-interest of the petitioners had served Sadhu Singh before his death, they were entitled to retain the property. Even otherwise, they being in possession of the property for the last more than 12 years had become the owners thereof by way of adverse possession, which was hostile to the knowledge of the owner as well as the public. Parsini entered into a compromise with the plaintiffs and on the basis thereof, the suit qua her was decreed as compromised. During the pendency of the suit, Nihalo filed written statement admitting the claim of the plaintiffs on 31.7.1980. However, subsequently, she filed application on 29.10.1980 for withdrawal of the admissions earlier made in the written statement. The application was dismissed by the trial Court. The order was upheld by this Court in CR No. 1207 of 2009 [ 2] Civil Revision and even Special Leave Petition filed before Hon'ble the Supreme Court was also dismissed on 16.4.1996. As the proceedings in the suit revived after the dismissal of the Special Leave Petition filed by Nihalo on account of the death of Nihalo and also the original plaintiffs, applications were filed for impleading their legal representatives. Vide order dated 24.1.2009, Isham Singh and Rakma Singh were ordered to be impleaded as legal representatives of Nihalo, who died on 25.12.2005. As even the original plaintiffs had also expired, even their legal representatives were also brought on record, who are the present petitioners. After the legal representatives of Nihalo were impleaded, they filed application on 2.2.2009 for permitting them to file additional written statement. On consideration of the reply filed by the petitioners, the learned court below finding merit in the claim made by the legal representatives of Nihalo permitted them to file additional written statement. It is this order, which is impugned in the present petition.

Learned counsel for the petitioners submitted that the impugned order passed by the learned court below is totally contrary to the settled position of law. It is a case where Nihalo had originally filed written statement admitting the claim of the plaintiffs. The application filed by her for withdrawal of the admissions made in the written statement was dismissed. That order was upheld upto Hon'ble the Supreme Court. Thereafter, the suit filed by the plaintiffs was required to be decreed there and then, as the claim of the plaintiffs had been conceded by the defendants. However, on account of the death of Nihalo (defendant in the suit), her legal representatives were brought on record. They sought to file additional written statement to contest the claim of the plaintiffs in the suit filed, which had already been admitted by their predecessor-in-interest in the written statement originally filed and the application for withdrawal of the admissions had already been dismissed. In fact, such an application was not maintainable at all and even if the legal representatives could file additional written statement, that could not be contrary to the stand already taken by the persons, to whom the legal representatives were representing and all what could be pleaded in the additional written statement is the stand, which could be taken by the person originally, as the legal representatives only stepped into the shoes of the person they are representing. In the present case, once even Nihalo could not file additional written statement, had she been alive, there was no question of permitting the filing thereof by her legal representatives after her death. Merely because during the pendency of the suit, the defendant, who had filed written statement admitting the claim of the plaintiffs, had expired, the proceedings in the CR No. 1207 of 2009 [ 3] suit were not to start afresh. Reliance was placed upon Bal Kishan v. Om Parkash and another, (1986) 4 SCC 155; Gurnam Singh v. Rattan Kaur, 2000(1) RCR (Civil) 408; Vidyawati v. Man Mohan,1996(1) PLR 97 and M. M. Katyal v. Subhash Chand and another, 2005(2) PLR 268.

Judgment of Hon'ble the Supreme Court, as has been relied upon by the learned court below, is sought to be distinguished stating that in that case, the persons, who were impleaded as legal representatives of deceased-defendant had even independent right in the suit in addition to the person, they were representing and in fact, these facts weighed with the court for granting them permission to file additional written statement, even though they were impleaded as legal representatives subsequently.

In response to the contentions raised by learned counsel for the petitioners, learned counsel for the respondents submitted that once the legal representatives are impleaded, they have a right to file additional written statement. They are not taking any stand which could not be taken by deceased-Nihalo. The law on filing of written statement or amendment thereof is quite liberal. It would be plain and simple violation of principles of natural justice in case the legal representatives of Nihalo are not permitted to file additional written statement, even though they have been impleaded in the suit to represent her interest. It would be mere a formality otherwise. Once they have been impleaded as defendants, they are entitled to protect their interest. He further submitted that after defendant- Nihalo expired and also the original plaintiffs, the legal representatives of both the parties were brought on record and amended plaint was filed. After the amended plaint is filed, the defendants certainly have right to file amended written statement, as the original written statement losses its value. It was further submitted that after the court below had allowed the respondents to file additional written statement, after filing of the replication by the petitioners, issues have been framed and the evidence is being led. The submission is that after the passing of the impugned order, the petitioners filed application seeking indulgence of the trial court to ignore the written statement already filed by the respondents, but the same was dismissed vide order dated 26.2.2009. Reliance was placed upon Jia Lal and another v. Savitri Devi and another, 1996(1) Civil Court Cases 37 (P&H); Maqsooda v. Abdul Karim and others, 1997 (Suppl.) Civil Court Cases 327 (Rajasthan); Baldev Singh and others v. Manohar Singh and another, 2006(3) RCR (Civil) 844; Sumtibai and others v. Paras Finance Co. Mankanwar and others, 2007(4) RCR (Civil) 524; and Sambhaji and others v. Gangabai and others, 2009 (1) RCR (Civil) 382.

CR No. 1207 of 2009 [ 4] In response to the contentions raised by learned counsel for the respondents, learned counsel for the petitioners submitted that there is no question of violation of principles of natural justice in the present case, as the legal representatives of Nihalo have merely to proceed with the case from the stage they were impleaded to represent her. Whatever stand was taken by deceased-Nihalo, the legal representatives were stict to that. Nihalo had been granted fair opportunity to file written statement, which she filed. The application filed by her for withdrawal of the admissions made in the written statement was dismissed and the order was upheld upto Hon'ble the Supreme Court. As far as subsequent order passed on 26.2.2009 is concerned, it was submitted that the same is merely reiterating the earlier order dated 19.2.2009, impugned in the present petition, as the court opined that the issue sought to be raised by the petitioners, had already been decided.

Heard learned counsel for the parties and perused the paper book. Relevant provisions of Order 22 Rule 4(2) CPC are extracted below:

              "             ORDER XXII
                      DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
              1 to 3 xx                    xx                         xx

4. Procedure in case of death of one of several defendants or of sole defendant. (1) xx xx xx (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

xx xx xx Hon'ble the Supreme Court in Vidyawati's case (supra), while following the earlier judgments in Bal Kishan v. Om Parkash, 1986(2) RCR (Rent) 551 and Jagdish Chander Chatterjee v. Sri Kishan, 1973(1) SCR 850 opined that when a person is impleaded to represent a deceased defendant, all rights under Order 22 Rule 4(2) CPC and defences available become available to him. In addition, if such a person had any independent right, title or interest in the property, then he had to get himself impleaded in the suit as a party defendant in which case he could set up his own independent right, title or interest to resist the claim made by the plaintiff. The relevant paragraphs thereof are extracted below:

"3. It is seen that the petitioner' claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now admitted across the Bar that the first defendant had life interest created under the will executed by Champawati. Therefore, the said interest is conterminous CR No. 1207 of 2009 [ 5] with his demise. Whether the petitioner has independent right, title and interest dehors the claim of the first defendant is a matter to be gone into at a later 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.

4. This Court in Bal Kishan v. Om Parkash, AIR 1986 SC 1952 has said thus (at P. 1954):

"The sub-rule (2) of Rule 4 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."

5. The same view was expressed in Jagdish Chander Chatterjee v. Sri Kishan, 1973 (1) SCR 850, 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."

The aforesaid judgment of Hon'ble the Supreme Court was followed by this Court in M. M. Katyal's case (supra) and Gurnam Singh's case (supra) and Rajasthan High Court in Prem Singh (deceased) through his LRs v. Smt. Savitri Devi and others, 2006(4) CCC 178.

As far as judgment of Hon'ble the Supreme Court in Sumtibai's case CR No. 1207 of 2009 [ 6] (supra) is concerned, it was a case where the trial court had rejected the application filed under Order 22 Rule 4(2) CPC read with Order 1 Rule 10 CPC. The findings recorded therein permitting the newly impleaded LRs to file the written statement were in terms of the following facts in that case:

"6. Learned counsel for the respondent submitted that in view of Order 22 Rule 4(2), a person who has been made a party can only take such pleas which are appropriate to his character of legal representative of the deceased. Learned counsel also submitted that two of the applicants/legal representatives of deceased Kapoor Chand, i.e. Narainlal and Devilal, had applied to the court under Order 1 Rule 10 to be impleaded, but their applications were rejected. An application was also filed by late Kapoor Chand praying that his sons be impleaded in the suit but that application was also rejected. Hence, the learned counsel submitted that the appellants cannot be permitted to file an additional written statement in this suit.

7. Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co-owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also co-owners of the property in dispute. However, we are not expressed any final opinion on the question whether they are co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial court to decide. Hence, in our opinion, the courts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement." A perusal of the aforesaid facts clearly show that it was a case where the newly impleaded LRs of deceased-Kapoor Chand also had independent right in addition to being the LRs of Kapoor Chand. In the same judgment, Hon'ble the Supreme Court, while referring to various judgments, had discussed about the principles of precedent inter alia opining that a little difference in facts or CR No. 1207 of 2009 [ 7] additional facts may make a lot of difference in the precedential value of a decision. Guidance therefor is also available in paras 10 to 13 of the aforesaid judgment in Sumitbai's case (supra), which are extracted below:

"10. As observed by this Court in State of Orissa . Sudhansu Sekhar Misra, (AIR 1968 SC647 vide para 13):-

"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495: "Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."

11. In Ambica Quarry Works v. State of Gujarat and others, (1987) 1 SCC213 (vide para 18) this Court observed:

" The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

12. In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 (vide para 59), this Court observed:

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

13. As held in Bharat Petroleum Corporation Ltd. & another CR No. 1207 of 2009 [ 8] v. N. R. Vairamani & another, 2004 (2) RCR (Rent) 486:

(AIR2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed:

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In London Graving dock co. Ltd. v. Horton, (1951 AC 737 at p.

761), Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willies, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

In Home office v. Dorset Yacht Co. , (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972 (2) WLR 537) Lord Morris said:

" There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

CR No. 1207 of 2009 [ 9] Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

" Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

**** **** ***** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."

Considering the aforesaid facts and the enunciation of law, as referred to above, in my opinion, the facts noticed by Hon'ble the Supreme Court in Sumitbai's case (supra) were different where the newly impleaded LRs were permitted to file additional written statement as they also had independent right in the lis pending before the court.

The judgments in Sambhaji's case (supra) and Baldev Singh's case (supra) have no relevance in the facts and circumstances of the present case, where the issue was regarding filing of written statement beyond a period of 90 days and amendment of written statement, where a suit was going in a normal routine and not a case where the newly impleaded LRs are seeking to file additional written statement.

If the facts of the present case are considered in the light of enunciation of law, as referred to above, in my opinion, the same clearly lien in favour of the petitioners. The respondents herein are representing deceased- Nihalo, defendant in the suit. The admitted facts on record are that she had filed written statement admitting the claim of the petitioners. Later on, application was filed for withdrawing the admissions already made. The same was rejected. The order was upheld upto Hon'ble the Supreme Court. Meaning thereby what CR No. 1207 of 2009 [ 10] remained on record was the written statement of deceased-Nihalo admitting the claim of the predecessors-in-interest of the petitioners. It was during the pendency of the suit thereafter that Nihalo died and the respondents were impleaded as LRs in an application filed under Order 22 Rule 4 CPC. It has not been pointed out before the court that they were impleaded as defendants on their own rights well. Once that is so, they merely stepped into the shoes of deceased-Nihalo and could raise only those pleas which are appropriate to their character as legal representatives and not those which were personal to the deceased. The LRs are brought on record to protect the interest of the deceased in the suit. If the newly impleaded LRs intend to take new plea, they are required to get themselves impleaded in the suit as contesting party in their own right, which is not there in the case in hand. Once deceased-Nihalo had filed the written statement admitting the claim of the predecessors-in-interest of the petitioners, any additional written statement taking a plea different to that would be in the line of contesting the suit, which was not available to Nihalo had she been alive.

Considering the fact that her application for withdrawal of admitting written statement already filed had been rejected, I do not find any merit even in the submission made by learned counsel for the respondents that the amended plaint having been filed, they were entitled to file amended written statement as it was admitted case of the petitioners as well as evident from the record that amendment in the plaint was only in the memo of parties, which incorporated the names of the LRs of deceased plaintiffs and defendants. The judgment in Jia Lal's case (supra) is not dealing with an issue where the LRs of deceased-defendant were seeking right to file additional written statement after they were impleaded as party to the suit. Similar is the position with regard to the judgment of Rajasthan High Court in Maqsooda's case (supra).

In view of my aforesaid discussion, I find merit in the submissions made by learned counsel for the parties. Accordingly, the impugned order dated 19.2.2009, passed by the learned court below permitting the respondents to file additional written statement taking a plea contrary to the earlier plea taken by the deceased-defendant whom they were representing, is set aside.

The revision petition is disposed of in the manner indicated above.

(Rajesh Bindal) Judge May 05 ,2009 mk (Refer to Reporter)

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