SUDHA VADEHRA Vs. HARSH MALHOTRA

JUDGEMENT

(1.) THE petitioner is aggrieved by the findings returned in the impugned order dated 30.10.2011 vide which his application under Order 8 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') had been dismissed. Record shows that the present suit has been filed by the respondent seeking declaration, permanent and mandatory injunction. The petitioner before this Court is the legal representative of deceased defendant No. 1. Deceased defendant No. 1 had filed a written statement. On an application filed by deceased defendant under Order 7 Rule 11 of the Code, the suit filed by the plaintiff stood dismissed; the plaint had been rejected. An appeal was filed against the said order. In the appeal proceedings, during hearing of the appeal, the father of the petitioner i.e. defendant No. 1 expired. The RFA was also disposed of on 07.08.2008. The appeal filed by the respondent had been allowed. The order passed by the trial Court under Order 7 Rule 11 of the Code had been set aside. The parties had been directed to appear before the trial Court and the suit was to proceed on its merits. It is also not in dispute that factum of death of deceased defendant had also been brought to the notice of the appellate Court in the RFA proceedings.

(2.) ON remand to the trial Court, an application under Order 22 Rule 4 of the Code had been filed by the respondent. This was noted in the order dated 08.10.2009. On the next date i.e. 10.12.2009, learned counsel for the respondent made a statement that he seeks permission of this Court to withdraw the aforenoted application as the legal representative of the deceased defendant has already been impleaded in the High Court. Accordingly, the application was permitted to be withdrawn. Amended memo of parties was directed to be filed. On the same date, issues were framed and the matter was fixed for the evidence of the plaintiff.

(3.) IT was only in October, 2010 that the present application came to be filed by the petitioner wherein it has been an additional written statement was sought to be filed by the legal representative of the deceased defendant. No proposed written statement had been filed along with application. That apart in this application under Order 8 Rule 1 of the Code there is only a factual narration of the facts. There is no doubt to the legal proposition that under Order 22 Rule 4(2), the legal representatives of the deceased may file an additional written statement which is appropriate to the legal character to the deceased defendant. What was the proposed amended written statement has not been disclosed to the Court. That apart, even after 10.11.2009 when the amended memo of parties was taken on record and the petitioner had been formally brought on the array of parties, issues having been framed, the evidence was led in part; the petitioner still chose not to assail this order. He did not till almost 11 months later feel the necessity to file an additional written statement. It was only in October, 2010, that he chose to file this present application under Order 8 Rule 1 of the Code. In this intervening period, admittedly PW -1 was examined in chief and also partly cross -examined; two applications filed by the petitioner and (as noted supra) were also dealt with. The proposed written statement was also not a part of the record. What was the defence sought to be set up by the legal representatives of the deceased defendant; whether it was in conformity with the defence already filed by the defendant or whether it was opposite to it is not known. There is no such averment in the application under Order 8 Rule 1 of the Code. Even on specific query, learned counsel for the petitioner is not able to give any satisfactory answer.