SATYABHAMA CHOUDHURY Vs. BANSIDHARA CHOUDHURY

JUDGEMENT

(1.) THIS writ petition has been filed by the present petitioner being aggrieved with the order of the learned Civil Judge (Sr.Divn.), 1st Court, Cuttack in Civil Suit No.151 of 2004 dated 10.2.2011 (Annexure4) wherein the learned court below refused to accept the written statement filed by the petitioner after she was substituted on the death of her husband, who was Defendant No.16 in the court below.

(2.) FOR the sake of clarity in brief it may be mentioned here that one Bansidhara Choudhury, who is the present Opposite Party No.1 in this writ petition, as plaintiff instituted Civil Suit No.151 of 2004 in the Court of learned Civil Judge (Sr.Divn.), 1st Court, Cuttack for partition of 'B and 'C schedule properties fully described in the schedule of the plaint and for carving out the specific shares of the parties. In the said suit Sachidananda Choudhury was arrayed as Defendant No.16. The said Sachidananda Choudhury the original Defendant No.16 along with Defendant Nos.11, 13 and 15 had filed their joint written statement. During pendency of the suit, the original Defendant No.16 died and accordingly his legal heirs, namely the widow and the minor daughter were substituted. Notice was issued from the Court to the substituted Defendant 16(a) by the Court to enter appearance on 30.08.2010 and accordingly the present petitioner entered appearance and applied for time for filing the written statement. The Court allowed her prayer and ultimately a written statement was filed.

(3.) AFTER hearing the parties, the impugned order was passed. Learned counsel appearing for the present petitioner contended that when the present petitioner and her minor daughter were substituted as the legal heirs of the deceased -Defendant No.16 notice was issued by the Court vide Annexure -1 asking her to answer the material questions relating to the suit and produce any document basing upon which she would support the defence and after appearing the petitioner prayed for time to file written statement. The Court granted time for the same and ultimately the written statement which was filed is not different from the stand which has already been taken by her husband, who is original Defendant No.16 in the suit. It was also contended that when no new fact has been introduced, the learned court below should not have rejected the prayer of the substituted D -16(a) to accept the Written Statement, as being the legal representative she has a right to take the defence by way of filing a written statement and she may adduce evidence in the suit. Accordingly, it was contended by the learned counsel for the petitioner that the impugned order at Annexure -4 should be set aside. In support of such contention reliance was placed on a decision of the Apex Court as reported in 2007(II) OLR (SC) 811, Sumtibai and others -v -Paras Finance Company Registered Partnership Firm.