I have heard the respective counsel for the parties at length. The
defendant No.1 had filed his written statement on record on 22/04/1996. It
is not in dispute that the defendant No.1(ii) has been brought on record in
the capacity of legal heir of the original defendant No.1. The impleadment
of the defendant No.1(ii) is under provisions of Order XXII Rule 4 of Code of
Civil Procedure, 1908 (for short, the Code). As per provisions of Order XXII
Rule 4(2) of the Code, the defence appropriate to the character of defendant
No.1(ii) as legal representative of deceased defendant No.1 was permissible
to the taken. The impleadment being as legal heir of the deceased defendant
No.1, the legal representative would merely step into the shoes of said
defendant. A plea contrary to the one taken by the deceased defendant as
well as a plea personal to the legal representative could not be permitted to
be taken by him by virtue of such impleadment. This position is clear from
the ratio of the decisions relied upon by the learned counsel for the
petitioner.
In that background if the written statement proposed to be filed on
record is seen, the same indicates that a plea based on the Will dated
26/05/1994 executed by said Pandurang has been taken. As the defendant
No.1(ii) was on record in the capacity as the legal representative of
defendant No.1, it was open for him only to take that plea that was available
to the deceased defendant. It would not be open for the legal representative
to take a diverse plea from the one taken by defendant No.1.
6. The position aforestated would however not apply in so far as the
counterclaim is concerned. A counterclaim has the same effect as a crosssuit.
If the legal representative can bring an independent action for seeking
relief, the same can also be sought by filing a counterclaim.
The counterclaim being based on the Will dated 26/05/1994 and it
being open for the said legal representative to assert his right in his
independent capacity, the same can be permitted to be filed on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4924 OF 2015
Nilkanth Pandurang Wath vs Amarkanth Pandurang Wath,
CORAM : A.S.CHANDURKAR, J.
DATE : July 22, 2016
Citation: 2016(6) MHLJ 46
The challenge in the present writ petition is to the order dated
04/07/2015 passed by the trial Court below Exhibit179 granting permission
to the defendant No.1(ii) to file his written statement on record.
2. The petitioners are the original plaintiffs who had filed Spl.C.S.
No.38/1995 for partition and separate possession of the suit property. In the
plaint it was their case that they had legal right to the property in question.
In the suit Amarkanth s/o Pandurang Wath was shown as defendant No.1
while Pandurang Wath was arrayed as defendant No.2. During pendency of
the suit, the defendant No.1 expired on 19/09/2014 after which his widow
and son were brought on record as defendant Nos.1(i) and (ii). The
defendant No.1(ii) filed an application below Exhibit179 seeking permission
to file his written statement on record. It was stated that after service of the
notice, the case was fixed on 23/04/2015 for filing the written statement. It
was then adjourned to 29/04/2015. There was some confusion with regard
to the adjourned date and hence the written statement could not be filed on
said date. It was further stated that the written statement was prepared on
30/04/2015 and was sought to be placed on record on 04/07/2015. This
application was opposed by the plaintiffs. The trial Court by the impugned
order allowed the said application.
3. Shri V. B. Gawali, the learned counsel for the petitioners
submitted that the impugned order passed by the trial Court was without
assigning any reasons. He submitted that the written statement sought to be
filed by the defendant No.1(ii) had raised the pleas which were beyond the
pleas raised in the written statement that was initially filed by the defendant
No.1. He submitted that the defendant No.1(ii) having been impleaded as
the legal heir of the defendant No.1, he could not be permitted to take an
independent plea which was not taken in the original written statement. He
then submitted that the said legal representative had also sought to file his
counterclaim in his independent capacity. Thus according to him, the
impugned order permitting the written statement to be filed was liable to be
set aside. He placed reliance on the judgments of Honourable Supreme
Court in 1989(1) SCC 147 Annupam Pruthi vs. Rajen Bal, (1999) 3 SCC
109 Gajraj vs. Sudha and ors. and judgment of learned Single Judge in
2008(3) Mh.L.J. 297 Manguesh Rajaram Wagle v. Suresh D. Naik.
4. Shri A. K. Neware, the learned counsel for the respondents
supported the impugned order. According to him, the stand taken by the
defendant No.1(ii) was based on the Will executed by Pandurang dated
26/05/1994. As per the said Will, the legal heirs of Amarkanth had become
the owners of the suit property. He then submitted that the trial Court
rightly allowed the application moved by the legal heirs for filing the written
statement after finding that there was some confusion with regard to the
date on which the written statement was to be filed.
5. I have heard the respective counsel for the parties at length. The
defendant No.1 had filed his written statement on record on 22/04/1996. It
is not in dispute that the defendant No.1(ii) has been brought on record in
the capacity of legal heir of the original defendant No.1. The impleadment
of the defendant No.1(ii) is under provisions of Order XXII Rule 4 of Code of
Civil Procedure, 1908 (for short, the Code). As per provisions of Order XXII
Rule 4(2) of the Code, the defence appropriate to the character of defendant
No.1(ii) as legal representative of deceased defendant No.1 was permissible
to the taken. The impleadment being as legal heir of the deceased defendant
No.1, the legal representative would merely step into the shoes of said
defendant. A plea contrary to the one taken by the deceased defendant as
well as a plea personal to the legal representative could not be permitted to
be taken by him by virtue of such impleadment. This position is clear from
the ratio of the decisions relied upon by the learned counsel for the
petitioner.
In that background if the written statement proposed to be filed on
record is seen, the same indicates that a plea based on the Will dated
26/05/1994 executed by said Pandurang has been taken. As the defendant
No.1(ii) was on record in the capacity as the legal representative of
defendant No.1, it was open for him only to take that plea that was available
to the deceased defendant. It would not be open for the legal representative
to take a diverse plea from the one taken by defendant No.1.
6. The position aforestated would however not apply in so far as the
counterclaim is concerned. A counterclaim has the same effect as a crosssuit.
If the legal representative can bring an independent action for seeking
relief, the same can also be sought by filing a counterclaim.
The counterclaim being based on the Will dated 26/05/1994 and it
being open for the said legal representative to assert his right in his
independent capacity, the same can be permitted to be filed on record.
7. Though it is true that the impugned order does not indicate any
reasons for granting the permission to file the written statement, considering
the averments made in the application below Exhibit179, I do not find that
by allowing the said application the trial Court committed any jurisdictional
error.
In view of aforesaid, though the order granting permission to the
defendant No.1(ii) to file written statement is maintained, the same is
subject to the following clarification :
(i) The written statement filed by the defendant No.1(ii) is permitted
to be taken on record only in the capacity of the defendant
No.1(ii) being the legal representative of defendant No.1 and in
the light of the stand taken by the defendant No.1 in his written
statement dated 22/04/1996. All diverse and independent pleas
taken in the written statement of defendant No.1(ii) shall not be
permitted to be taken.
(ii) It would however be open for the defendant No.1(ii) to agitate his
counterclaim in his independent capacity in accordance with law.
Rule is disposed of in aforesaid terms with no order as to costs.
Print Page
defendant No.1 had filed his written statement on record on 22/04/1996. It
is not in dispute that the defendant No.1(ii) has been brought on record in
the capacity of legal heir of the original defendant No.1. The impleadment
of the defendant No.1(ii) is under provisions of Order XXII Rule 4 of Code of
Civil Procedure, 1908 (for short, the Code). As per provisions of Order XXII
Rule 4(2) of the Code, the defence appropriate to the character of defendant
No.1(ii) as legal representative of deceased defendant No.1 was permissible
to the taken. The impleadment being as legal heir of the deceased defendant
No.1, the legal representative would merely step into the shoes of said
defendant. A plea contrary to the one taken by the deceased defendant as
well as a plea personal to the legal representative could not be permitted to
be taken by him by virtue of such impleadment. This position is clear from
the ratio of the decisions relied upon by the learned counsel for the
petitioner.
In that background if the written statement proposed to be filed on
record is seen, the same indicates that a plea based on the Will dated
26/05/1994 executed by said Pandurang has been taken. As the defendant
No.1(ii) was on record in the capacity as the legal representative of
defendant No.1, it was open for him only to take that plea that was available
to the deceased defendant. It would not be open for the legal representative
to take a diverse plea from the one taken by defendant No.1.
6. The position aforestated would however not apply in so far as the
counterclaim is concerned. A counterclaim has the same effect as a crosssuit.
If the legal representative can bring an independent action for seeking
relief, the same can also be sought by filing a counterclaim.
The counterclaim being based on the Will dated 26/05/1994 and it
being open for the said legal representative to assert his right in his
independent capacity, the same can be permitted to be filed on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4924 OF 2015
Nilkanth Pandurang Wath vs Amarkanth Pandurang Wath,
CORAM : A.S.CHANDURKAR, J.
DATE : July 22, 2016
Citation: 2016(6) MHLJ 46
The challenge in the present writ petition is to the order dated
04/07/2015 passed by the trial Court below Exhibit179 granting permission
to the defendant No.1(ii) to file his written statement on record.
2. The petitioners are the original plaintiffs who had filed Spl.C.S.
No.38/1995 for partition and separate possession of the suit property. In the
plaint it was their case that they had legal right to the property in question.
In the suit Amarkanth s/o Pandurang Wath was shown as defendant No.1
while Pandurang Wath was arrayed as defendant No.2. During pendency of
the suit, the defendant No.1 expired on 19/09/2014 after which his widow
and son were brought on record as defendant Nos.1(i) and (ii). The
defendant No.1(ii) filed an application below Exhibit179 seeking permission
to file his written statement on record. It was stated that after service of the
notice, the case was fixed on 23/04/2015 for filing the written statement. It
was then adjourned to 29/04/2015. There was some confusion with regard
to the adjourned date and hence the written statement could not be filed on
said date. It was further stated that the written statement was prepared on
30/04/2015 and was sought to be placed on record on 04/07/2015. This
application was opposed by the plaintiffs. The trial Court by the impugned
order allowed the said application.
3. Shri V. B. Gawali, the learned counsel for the petitioners
submitted that the impugned order passed by the trial Court was without
assigning any reasons. He submitted that the written statement sought to be
filed by the defendant No.1(ii) had raised the pleas which were beyond the
pleas raised in the written statement that was initially filed by the defendant
No.1. He submitted that the defendant No.1(ii) having been impleaded as
the legal heir of the defendant No.1, he could not be permitted to take an
independent plea which was not taken in the original written statement. He
then submitted that the said legal representative had also sought to file his
counterclaim in his independent capacity. Thus according to him, the
impugned order permitting the written statement to be filed was liable to be
set aside. He placed reliance on the judgments of Honourable Supreme
Court in 1989(1) SCC 147 Annupam Pruthi vs. Rajen Bal, (1999) 3 SCC
109 Gajraj vs. Sudha and ors. and judgment of learned Single Judge in
2008(3) Mh.L.J. 297 Manguesh Rajaram Wagle v. Suresh D. Naik.
4. Shri A. K. Neware, the learned counsel for the respondents
supported the impugned order. According to him, the stand taken by the
defendant No.1(ii) was based on the Will executed by Pandurang dated
26/05/1994. As per the said Will, the legal heirs of Amarkanth had become
the owners of the suit property. He then submitted that the trial Court
rightly allowed the application moved by the legal heirs for filing the written
statement after finding that there was some confusion with regard to the
date on which the written statement was to be filed.
5. I have heard the respective counsel for the parties at length. The
defendant No.1 had filed his written statement on record on 22/04/1996. It
is not in dispute that the defendant No.1(ii) has been brought on record in
the capacity of legal heir of the original defendant No.1. The impleadment
of the defendant No.1(ii) is under provisions of Order XXII Rule 4 of Code of
Civil Procedure, 1908 (for short, the Code). As per provisions of Order XXII
Rule 4(2) of the Code, the defence appropriate to the character of defendant
No.1(ii) as legal representative of deceased defendant No.1 was permissible
to the taken. The impleadment being as legal heir of the deceased defendant
No.1, the legal representative would merely step into the shoes of said
defendant. A plea contrary to the one taken by the deceased defendant as
well as a plea personal to the legal representative could not be permitted to
be taken by him by virtue of such impleadment. This position is clear from
the ratio of the decisions relied upon by the learned counsel for the
petitioner.
In that background if the written statement proposed to be filed on
record is seen, the same indicates that a plea based on the Will dated
26/05/1994 executed by said Pandurang has been taken. As the defendant
No.1(ii) was on record in the capacity as the legal representative of
defendant No.1, it was open for him only to take that plea that was available
to the deceased defendant. It would not be open for the legal representative
to take a diverse plea from the one taken by defendant No.1.
6. The position aforestated would however not apply in so far as the
counterclaim is concerned. A counterclaim has the same effect as a crosssuit.
If the legal representative can bring an independent action for seeking
relief, the same can also be sought by filing a counterclaim.
The counterclaim being based on the Will dated 26/05/1994 and it
being open for the said legal representative to assert his right in his
independent capacity, the same can be permitted to be filed on record.
7. Though it is true that the impugned order does not indicate any
reasons for granting the permission to file the written statement, considering
the averments made in the application below Exhibit179, I do not find that
by allowing the said application the trial Court committed any jurisdictional
error.
In view of aforesaid, though the order granting permission to the
defendant No.1(ii) to file written statement is maintained, the same is
subject to the following clarification :
(i) The written statement filed by the defendant No.1(ii) is permitted
to be taken on record only in the capacity of the defendant
No.1(ii) being the legal representative of defendant No.1 and in
the light of the stand taken by the defendant No.1 in his written
statement dated 22/04/1996. All diverse and independent pleas
taken in the written statement of defendant No.1(ii) shall not be
permitted to be taken.
(ii) It would however be open for the defendant No.1(ii) to agitate his
counterclaim in his independent capacity in accordance with law.
Rule is disposed of in aforesaid terms with no order as to costs.
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