RAMESH SETHI Vs. VINOD KUMAR KATARIA

JUDGEMENT

(1.) SHORT facts involved in the petition are that the plaintiffs/respondents instituted a suit for eviction against the sole defendant, namely, Smt. Shobha Sethi. The suit was decreed by the Court of IX Civil Judge, Class II, Jabalpur.

(2.) FEELING aggrieved by it, Smt. Shobha Sethi preferred an appeal under section 96 of the Code of Civil Procedure. During pendency of the appeal, Smt. Shobha Sethi died on 7th January, 2005. Present petitioners being legal representatives of Smt. Shobha Sethi, were substituted in her place in the appeal. After substitution, the legal representatives submitted additional written statement under Order 22 Rule 4 of Code of Civil Procedure. It was opposed by the plaintiffs/respondents. Learned lower appellate Judge declined to take additional written statement on record.

(3.) SHRI R.K. Sanghi, learned counsel contended that the aforesaid provision read with Order 22 Rule 11 of CPC obliges even the appellate Court to take additional written statement of the legal representatives on record provided it suits his character. Shri Sanghi, learned counsel contended that in view of the specific provision of Order 22 Rule 4 read with Rule 11 of CPC, the additional written statement containing the defence of petitioners in the character of legal representatives ought to have been taken on record and no leave is required for the purpose. Even, the appellate Court has no power to decline to take it on record, because an appeal is a continuance of suit. Since the legal representatives of a defendant in a suit is entitled as of right to submit an additional written statement containing an appropriate defence, the same right may be exercised even at appellate stage. He, for this purpose, relied on Sri Chand and others v. Jagdish Per shad Kishan Chand and others [AIR 1966 SC 1427] Rachakonda Narayana v. Ponthala Parvathamma and another [(2001) 8 SCC 173] and BalKishan v. Om Prakash and another [1987 (I) MPWN 191 = AIR 1986 SC 1952]. In the cases of Sri Chand and Rachakonda Narayana (supra), it has been held that an appeal is a continuation of suit. This preposition cannot be doubted at all. In the case of Bal Kishan (supra), the death of a tenant occurred during pendency of the original proceedings for eviction. Likewise, the ruling of Gaurav Uppal and others v. Mrs. Sunita Uppal [AIR 2004 Punjab and Haryana 204] relates to a situation where the death of a defendant occurred in a suit. Case of Malkiyat Singh and another v. Om Prakash and others [AIR 1995 Rajasthan 38] deals with the right of a minor defendant to file a fresh written statement after attaining majority, which is not a case herein. In Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur [AIR 1992 Delhi 162] the death of one of the defendants had occurred during pendency of the suit.