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(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant."

23. In J.C. Chatterjee's case, this Court interpreted the above reproduced provision and held:

Under sub-clause (ii) of Rule 4 of Order 22 of the 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.

24. In Bal Kishan's case, the proposition laid down in J.C. Chatterjee's case was reiterated, but its width was limited by observing that the same would apply only to those cases where the Court hearing the case has jurisdiction to try the issues relating to independent title also. The facts of Bal Kishan's case were that respondent No. 1 therein filed a petition for eviction of the tenant by alleging that the latter had sublet the premises without his consent. During the pendency of the petition, the tenant Musadi Lal died. Thereupon, the appellant Bal Kishan filed an application for being brought on record as legal representative of the deceased. The Rent Controller allowed the application. Thereafter, the appellant filed additional written statement asserting therein that the premises in question being residential and commercial, the legal heir of the tenant could not be treated as a tenant as defined under Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of such legal heir of the tenant would be that of a trespasser. He accordingly prayed for dismissal of the eviction petition. The Rent Controller rejected the appellant's plea and allowed the eviction petition by holding that Musadi Lal had sublet the premises to Med Ram without his consent. The appeal and revision filed by the appellant were dismissed by the Appellate Authority and the High Court respectively. Before this Court, the appellant relied upon the ratio of J.C. Chatterjee's case and argued that he was entitled to raise an additional plea that the eviction petition was not maintainable. While rejecting this plea, this Court held:

(emphasis supplied)

25. In Vidyawati's case, this Court considered the question whether a person impleaded as a legal representative of the deceased defendant can independently claim title to and interest in the property under a will. It was contended by the appellant that claim of the original defendant and that of the legal representative are founded on the will executed by Champawati and the courts below were not right in refusing to permit her to file additional written statement. While approving the view taken by the courts below, this Court observed "whether the petitioner has independent right, title and interest de hors the claim of the first defendant is a matter to be gone into at a later proceeding. It is true that when the petitioner was impleaded as a party-defendant, all rights under Order XXII Rule 4(2), and defences available to the deceased defendant became 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. Thereafter, she could resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. For taking this view, the Court relied upon the judgments in J.C. Chatterjee's case and Bal Kishan's case.

26. The judgments of Bal Kishan's case and Vidyawati's case are clearly distinguishable. In the first case, the earlier judgment in J.C. Chatterjee's case, which substantially supports the appellants was distinguished on the ground that the plea raised by the impleaded legal representative of the tenant was inconsistent with his defence and, if accepted, the same would result in ouster of the jurisdiction of the Rent Controller. In the second case also, the Court found that the plea raised by the appellant, who was impleaded as legal representative of the defendant that she had independent title under the will executed by Champawati was not in consonance with the plea taken by the original defendant. However, as discussed in the earlier part of the judgment, the claim made by the appellants is in no way inconsistent with or derogatory to the defence set up by Abdul Razak. In any case, once the additional written statement filed by the appellants was taken on record without any objection by respondent Nos. 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order VI Rule 16 CPC and considering whether respondent Nos. 1 and 2 were able to make out a case for exercise of power by the court under that provision.