NEELAM AND OTHERS Vs. RAJ RANI AND OTHERS

JUDGEMENT

(1.) The revision petition is at the instance of defendants, who sought for amendment on a plea that their predecessor Telu Ram, who had been cited as a defendant in suit had actually died on 23.08.2004 and apart from recording the fact of his death, the plaintiff had deliberately not impleaded the legal representatives of the deceasedTelu Ram at the time when a decree was passed on 20.11.2009. The legal representatives were served with summons in appeal filed by some of the appellants and the contentions of the applicants were that they came to know about the institution of the suit and the decree that came to be passed only when they were served with summons in Appellate Court and they had to therefore, file an amendment to the written statement purported to have been filed by Telu Ram. During his life time, he was purported to have filed the written statement conceding to claim of family partition made by the plaintiff and conceded to the plaintiff's claim for the reliefs in suit. The legal representatives sought to contend that Telu Ram could not have been a party to such a written statement said to have been filed in Court and set out circumstances for suspecting the genuineness of the written statement by bringing out the fact that Telu Ram had been represented through the plaintiff's counsel's junior himself and the defence must have been engineered to suit the plaintiff's own case by deceit and fraud. It was also the contention of the legal representatives that some of the signatures of Telu Ram on blank papers must have been mis-utilized for filing the written statement. The amendment was, therefore, brought in extraordinary circumstances when an opportunity to test the genuineness of the written statement that was already filed in Court could be made by the fact that the legal representatives had not been brought on record.

(2.) Learned counsel appearing for the respondents states that from the point of view of amendment in Civil Procedure Code under Order 22 Rule 2A, duty to bring on record the LRs of deceased is on heirs of deceased and not on the plaintiff, who was dominus litus and the legal representatives of the deceased-defendant themselves could have moved an application to implead themselves as parties. While this could be a matter of procedure, if the legal representatives were to contend before the Court that they were not aware of the pendency of proceedings and therefore, they could not implead themselves, the said provision cannot apply at all. Again the issue is not whether the claims against the deceased-defendant have abated. The issue is whether one of the defendant's legal representative could be kept out of the Court to state a defence of what was possible. It must be seen in the context of what defence was possible if Telu Ram himself had been alive. Learned counsel appearing on behalf of the respondents wants me to make an assumption, which in my view, is wholly wrong that the written statement by Telu Ram must be presumed to be true. There should be no such presumption. If the contention of the legal representatives was that the statement was not filed by Telu Ram at all, then keeping the legal representatives at bay would mean lending a premium to plaintiff to commit fraud on Court and allow a status quo to continue to obtain a cake walk on the defendent's right. It can never be a law that a person, who was arrayed as a defendant and who was expired, need not have a representation for such a deceased party. Order 22 Rule 2-A and Rule 3 enact a rule of procedure and the said amendment only makes it flexible in not compelling the plaintiff or the appellant to take steps to implead the legal representatives and also relieves a party from a consequence of abatement if steps are not taken. I cannot hold that the suit had been abated by the defendant's representatives not having been brought on record. I will only state that if legal representatives had a defence to give that the statement filed in Court also was not genuine and that it had been brought by fraud or deceit, the defendant shall be entitled to make that plea and they shall not be driven to any independent suit to set aside the decree. An inherent fraud in the proceedings will be a matter that could still be adjudicated in the principal suit itself and it cannot await an action through a separate suit. When there is an appeal to appellate forum assailing the decree passed already, it will be illogical to contend that the validity of the decree could not be attacked. An appeal remedy is an essential rule of justice, for a defeated party has an opportunity to show that the facts as brought before the Court were not properly established. If the plaintiff was, therefore, trying to secure a decree as against the estate of Telu Ram on the ground that Telu Ram had conceded plaintiff's title to the property, it cannot be without affording a right of contest by the representatives of Telu Ram. What should have been possible if Telu Ram himself was alive ought to be possible for the legal representatives as well. I am not impressed with the argument placed by the counsel for the respondents that the legal representatives could not have a defence that the statement had been filed by forgery. In this case, the legal representatives have come to Court seeking for amendment of the plaint by pointing out to me that they were not before the trial Court when the decree was passed against Telu Ram. That right cannot be lost by clever machination of the plaintiff. It has to be still tested whether Telu Ram's representatives are trying to bring out truth or they are stating matters which are false. It cannot be presaged by a Court without allowing for such opportunity to legal representatives to bring the amended written statement and at best the plaintiff shall have only a right to file a rejoinder and seek for a contest on facts. If the amendment to the written statement would require attendance of witnesses and the correctness of the statement said to have been filed by Telu Ram to be tested by oral evidence, the same shall be done and it will be decided by the Appellate Court whether such opportunity must be given for oral evidence or not, if need be, to remand the appeal to trial court for allowing for additional evidence. I am not prepared to take a view and foreclose a right of hearing on such a contention that could be brought by the parties.

(3.) The impugned order rejecting a plea for amendment brought at the instance of the legal representatives of Telu Ram was unjustified and wholly erroneous. It is set aside and the revision petition filed by the legal representatives of Telu Ram, who are the petitioners before the Court is allowed.