Delhi High Court
Saved Sirajul Hasan vs Syed Murtaza Ali Khan Bahadur And Ors. on 8 August, 1991
Equivalent citations: AIR1992DELHI162
JUDGMENT Jaspal Singh, J.
(1) A question pristinely legal has given rise to this order. As the facts are not of much conse.cosquence, only a brief resume would suffice.
(2) Oil February 7, 1982 Syed Murtaza Ali Khan. who was one of the defendants, died and by order dated July 30. 1982 his legal representatives were brought on the record who filed their written statement in the Registry which was placed on the record of the suit. The matter rested there for years and came to the force only while final arguments for disposal of the main suit were being heard and that too when Mr. B. D. Sharma representing the defendant referred to the pleas taken therein. It was time for Mr. R.K.P. Shankardass, the learned counsel for the plaintiff, to register his protest. His objection was that the legal representatives had at no stage sought the leave of The court, nor the court had granted any, to file additional written statement and consequently the filing of the written statement 'surreptitiously' in the Registry would not suffice. He, in support relied upon Order 8 Rule 9 of the Code of Civil " Procedure. Needless to say, Mr. Sharma found the objection unpalatable. As per him Order 8 rule 9 would be inapplicable. He drew my attention to Order 22 rule 4 and argued that under the said provision the legal representatives had the right to put up the defense available to them and that is what they had done.
(3) What, then, is the legal position ?
(4) Let me, first have a peep at the provisions. First. Order 8 rule 9. It says : "No pleading subsequent to the written statement of a defendant other than by way of defense to a setoff (or counter-claim) shall be presented excepted by the leave of the Court and upon such terms as the Courts thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same." And, now the relevant portion of sub-rule 2 of Rule 4 of Order 22. It reads : "(2)Any person so made a party may make any defense appropriate to his character as legal representative of the deceased defendant.
(5) Does Order 8 rule 9 control Order 22 rule 4? Is it that the legal representative brought on the record must necessarily first apply under order 8 rule 9 and seek permission of the court before raising a defense appropriate to his character as legal representative of the deceased defendant ?
(6) I feel that Order 8 rule 9 read in conjunction with Order 6 rule 5 lays down a rule of pleading and deals with the situations where, for example, a party wants to make a further pleading after the written statement has been filed on account of his having failed to raise certain pleas in the original written statement, or where a minor defendant on attaining majority wants to file fresh written statement or where the defendant having not appeared previously and having been proceeded against ex parte, joins the proceedings and seeks to file written statement. The tenor of this provision show that a party seeking to file additional written statement has necessarily to show to the court the circumstances us to why he failed to raise the picas in the original written statement Pauchanakesa J. tells us in Naryan v. Delai (AIR 1958 Mad. 383) as to how the matter is proceeded with under this provision. He says : "If the party wants to file an additional written statement. he has to file a petition staling the reason why he failed to say these things in the original written statement, and what excuse there is for allowing him to file an additional written statement at that stage. Then the other side has to be given an opportunity to oppose the petition and extend that such additional written statement should not be entertained at that stage. Then the Court has to give its decision as to whether the additional written statement is to be admitted or not."
(7) In short thus, the party applying under Order 8 rule 9 has to provide cogent reasons for permission to file additional written statement. He cannot claim it as a matter of reht. And, above all. the court, i.n exercise of its discretion, may or may not grant leave to present a fresh pleading.
(8) On the other hand, sub rule (2) of rule 4 of Order is not a rule of pleading. It has nothing to do with Order 6 or Order 6 rule 7 and is independent of Order 8 rule -. it is actually complete in itself. It provides its own horizon and prescribes its own limitations. It allows a person made party under Order 22 rule 4, to make "any defense", the only limitation 'being that the defense so made must be "appropriate to his character as legal representative of the deceased defendant" Besides all these distinguishing features, it may be notices that Order 8 rule 9 invests the court with the discretion to either allow or reject the request of the defendant for additional written statement. Its natural corollary is that a party cannot raise, as a matter of light, any fresh plea by way of additional written statement without first obtaining the leave of the court which the court, in its discretion, may or may not grant. However, and this to my mind is not less significant, a legal representative can and may, as a matter of right, raise any defense which is appropriate to his character as legal representative of the deceased defendant. And, if he chooses to raise any such defense, he being "entitled" (See J. C. Chattirjee v. S. K. Tandoon. ) to do so, the court has no discretion to stop or debar him from so doing.
(9) It is for the reasons recorded above, that I feel that Order 8 rule 9 has no application. However, judgment from Calcutta High Court needs to be noticed. Though it was not cited at the bar. as it appears to go against the view taken by me, it needs to be commented upon. It is Babu lal v. Jeshankar, . The judgment deals only with Order 22 rule 4 What, however, is of importance are the following lines picked up from the report : "Leave is given to the substituted defendants t- cater appearance and to make any defense appropriate to their character as legal representatives of the deceased defendant. Leave is given to the substituted defendants to file additional written statement". As would be borne out from the extract quoted, one does gather the impression that grant of leave is a pre-requisite. The judgment docs not refer to Order 8 rule 9 at all nor does it make any comparison between Order 8 rule 9 and order 22 rule 4. It also does not say grant of leaves condered necessary especially when it was recognised in the judgment itself that the legal representative had the "right" to make the defense. In fact. the order was passed in the absence of the legal representatives brought on the record. The point abated before me was thus no where near that case (10) As the defense raised by the substituted defendants was appropriate to their character as legal representatives of the deceased defendant, their written statement has to be taken note of. However, even if it be assumed that Order 8 rule 9 would apply and consequently leave of the Court would be required keeping in view the nature of the defense raised and the fact that the additional written statement has been on record for the last so many years without there being any objection from the side of the plaintiffs, leave is granted.