Whether legal representative of deceased defendant can file counter claim?

 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 s/o Pandurang Wath  vs­  Amarkanth s/o 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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