NIRANJAN SAHU Vs. GAURI SAHU AND ORS.

JUDGEMENT

(1.) Assailing the order dated 10.3.2010 passed by the learned Civil Judge (Sr. Division), Aska in C.S. No. 26 of 2007, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial court rejected the application of defendant No. 2 (e) under Order 8 Rule 9 C.P. C to accept the additional written statement.

(2.) Bereft of unnecessary details, the short facts of the case are that opposite party No. 1 as plaintiff filed C.S. No. 26 of 2007 in the court of the learned Civil Judge (Sr. Division), Aska impleading opposite party No. 2 and Purushottam Sahu, the predecessor -in -interest of the petitioner and opposite parties 3 to 6 as defendants for declaration of title and permanent injunction. Pursuant to issuance of summons, defendant No. 2 entered appearance and filed written statement supporting the stand of the petitioner. While the matter stood thus, he died on 21.3.2009. Thereafter, the petitioner and opposite parties 3 to 6 were substituted in his place. The petitioner, who is defendant No. 2 (e), filed an application to accept the additional written statement contending, inter alia, that defendant No. 2 is the father of the plaintiff. In collusion with defendant No. 2, plaintiff had filed the suit to grab the joint family property standing in the name of defendant No. 2 without making him as a party to the suit. In the said suit, defendant No. 2 filed written statement supporting the stand of the plaintiff. After the death of defendant No. 2, he was substituted and filed a separate written statement to safeguard the interest of the suit property. With this factual scenario, a prayer is made to accept the written statement. The plaintiff filed a counter to the same. The learned trial court came to hold that in the written statement, original defendant No. 2 supported the case of the plaintiff stating therein that the suit properties have been purchased by him through different sale deeds from different persons out of his own income and to press his legal necessity, he alienated the land to the plaintiff by means of a registered sale deed and thereafter delivered possession. But then defendant No. 2 (e) in his written statement has taken a totally contrary plea and stated that the suit properties are not self -acquired properties of the deceased -defendant No. 2. The defendant No. 2 (e) wants to file a separate written statement totally ignoring the written statement filed by the deceased defendant No. 2, who is a complete departure from the written statement filed by the deceased -defendant No. 2. Held so, the learned trial court rejected the application.

(3.) Mr. Tripathy, learned counsel for the petitioner submitted that when the defendant died and in his place the present petitioner has been substituted, it is open to the petitioner to file a written statement and take any defence under Order 22 Rule 4 (2) of C.P.C. He further submitted that under Order 8 Rule 9 C.P.C. the defendant can also file additional written statement with leave of the Court. He relied on a decision of the apex Court in the case of Sumtibai and others Vrs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj) through Mankanwar (Smt) W/o. Parasmal Chordia (dead) and others, : (2007) 10 SCC 82 as well as a decision of the Delhi High Court in the case of Saiyed Sirajul Hasan v/s. Sh. Syed Murtaza Ali Khan Bahadur and others, : AIR 1992 Delhi 162.