INDRAMANI SAHU Vs. HAREKRUSHNA PATRA AND OTHERS

JUDGEMENT

(1.) The facts giving rise to the dispute when digested appear to be within a narrow compass, because resolution thereof primarily depends on the scope and ambit of Order 22, Rule 4(2) of the Code of Civil Procedure, 1908 (in short the "Code").

(2.) Delineated in outline, the factual position is that one Bholanath Sahu was defendant no. 4 in a suit filed by the present petitioner as plaintiff. The said Bhola Nath Sahu died on 6.12.1981. The petitioner filed a petition on 18.2.1982 for substitution of his daughter, the present opposite party no.4 in his place, and that motion was allowed on 22.7.1982. Prior to his death, Bholanath had filed written statement on 21.11.1977. On 17.1.1983, Phula Dei, opposite party no.4 filed a written statement taking the stand that the plaintiff-petitioner was not the adopted son of Bholanath in addition to certain other pleas relating to the validity of a sale-deed dated. 5.4.1976. The Petitioner challenged the entertain-ability of such a written statement, which according to him was at variance with the written statement filed earlier by the original defendant. This plea did not find acceptance by the learned Munsif. Kandrapara who held that a substituted defendant was entitled to make any defence appropriate to his character as legal representative of the deceased defendant. This conclusion is assailed in this revision application.

(3.) As indicated above, the scope and ambit of Order 22, Rule 4(2) of the Code holds to the dispute. The prohibition under the aforesaid provision is not a prohibition against raising questions of legality which go to the very root of the matter and are in the nature of questions of jurisdiction. It operates in regard to the substantive rights of the parties. A legal representative is to continue litigation on the cause of action used upon and cannot set up a ne- or individual right. It can urge all contentions which the deceased could have urged, except those which were personal to the deceased . (See J.C. Chatterjee and others Vs. Shri. Sri. Kishan Tandon and another, AIR 1972 SC 2520. No new and inconsistent plea or a plea contrary to one taken by the deceased or a plea which was personal to the deceased can be taken (See Peddi Sivaiah and others Vs. Tekchand, AIR 1966 AP 305 : and Kedar Nath and another Vs. Smt Mohani Devi and others, AIR 1974 Delhi 171 (DB).