SHANKARAPPA Vs. BASAWARAJAPPA

JUDGEMENT

(1.) THE respondent herein filed O. S. No. 66/90 against Sri shankrappa, for decree of specific performance of an agreement of sale. The said Shankrappa entered appearance before the Trial Court and filed written statement inter alia denying the execution of agreement of sale in favour of the respondent. The said O. S. No. 66/90 came to be decreed vide judgment dated 9-8-96. After passing of the decree in O. S. No. 66/90, the defendant Shankrappa died. The petitioners herein who are the legal representatives of the deceased Shankrappa filed an appeal in R. A. No. 172/88 and the same came to be allowed and the matter was remanded to the Trial Court for fresh disposal in accordance with law. After remand, the respondent adduced evidence and when the matter was set down for arguments, the petitioners filed an application under Order 22 Rule 4 R/w Section 151 of CPC seeking permission of the Court to file additional written statement. The Trial court after hearing both the parties passed the impugned order rejecting the application filed by the petitioners. Hence, this Writ Petition.

(2.) SRI Veeresh B. Patil Learned Counsel appearing for the petitioners contend that as legal representatives of deceased shankrappa the petitioners are bound by the judgment and decree passed in O. S. No. 66/90. Therefore, the petitioners as legal representatives are entitled to file additional written statement. He further contends that the written statement filed by the legal representatives will not take away the admission made by their father shankrappa which enure to the benefit of the respondent. The Trial court without considering this aspect of the matter committed an error in passing the impugned order rejecting the application filed by the petitioners.

(3.) PER contra, Sri S. R. Hegde, Learned Counsel for the respondent contend that the petitioners are not entitled for taking an inconsistent plea than what has been taken by their father Shankrappa before the Trial Court. The written satement filed by the petitioners discloses that they have pleaded independent right in the schedule property and as legal representatives they are not entitled to take such a plea. Reliance is placed on the following decisions: ilr 1999 KARSN No. 54' air 1995 SCI653 air 1986 SCI952