TAMAL BHATTACHARYA Vs. ANUP BHATTACHARYA AND ORS.

JUDGEMENT

(1.) The order allowing of the application filed by the plaintiffs in Title Suit being No. 26 of 1992 by an order dated May 26, 2011 is the subject-matter of challenge in this revisional application by the substituted defendant being No. 2A.

(2.) In a suit for declaration and permanent injunction, the original defendant nos. 1, 2 and 3 contested the said suit by filing the written statement. During the pendency of the suit, the original defendant No. 2 expired and his legal representatives were brought on record. The said legal representatives filed a written statement which triggered the present litigation.

(3.) The plaintiffs filed an application objecting to the taking on record of the written statement filed by the substituted defendant on the ground that the said written statement is not in consonance with the provision of law and more particularly, Order XXII Rule 4 of the Code of Civil Procedure. The learned trial Court after taking into consideration the decisions reported in AIR 1998 Raj. 98/99, 47 CWN 899 and AIR 1986 SC 1953 held that a substituted defendant only steps in the shoes of the original defendant and can only file an additional written statement raising all pleas which such deceased-defendant can raise excepting which were personal to the deceased-defendant or respondent. Although the learned trial Court had taken note of AIR 1986 Supreme Court 1953 but did not apply such principle. Learned trial Court also did not assign any reason for not accepting the written statement that was filed by the substituted defendant. The sub-rule (2) of Rule 4 of Order XXII Rule 4 permits any person so made a party is entitled to make any defence appropriate to his character as legal representative of the deceased defendant.