JAGDISH PARSHAD (JAGDISH KUMAR) SON OF LATE DHANSI RAM AND LEGAL REPRESENTATIVES OF DECEASED DHANSI RAM Vs. JOSHI RAM (DECEASED) BY HIS LEGAL REPRESENTATIVES

JUDGEMENT

(1.) Joshi Ram (predecessor-in-interest of respondents) filed an application for ejectment of one Dhansi Ram before the Rent Controller Ferozepore, in July, 1972. During the pendency of the application Joshi Ram died in August, 1975, and Dhansi Ram died in October, 1975. The legal representatives of Joshi Ram were brought on the record and they filed the amended application for ejectment on or about November 1, 1975. When the legal representatives of Dhansi Ram were brought on the record, they filed a fresh written statement in reply to the amended petition on January 31, 1976. In their written statement they took up inter alia an objection to the effect that Dhansi Ram was not an individual tenant but the firm was the tenant. The legal representatives of the landlord, objected to this new plea being taken up particularly when it was inconsistent with the admission of the landlord's claim about Dhansi Ram being the tenant in the written statement filed by Dhansi Ram before his death. By its order dated April 8, 1976, the Court of Shri M. S. Sehmee, Rent Controller, Ferozepore, allowed the objection of the respondents and held that the legal representatives of deceased Dhansi Ram (petitioners before me) cannot be allowed to take up the plea that Dhansi Ram was not the tenant in the shop in dispute. It was observed by the learned Rent Controller that the application for ejectment had already become old and that if the tenants were allowed to take up this new objection at this stage the case would be re-opened and would be delayed further. To say the least, that is no ground in law to disallow a party from taking up a plea if the said party is otherwise entitled to do so. On the merits of the objection, the learned Rent Controller has held that the legal representatives of the original respondent could take up any defence appropriate to their character as such legal representatives and they can urge all the contentions which the deceased could have urged, but in the present case the deceased having never raised an objection about his not being the tenant but the Hindu undivided family firm being the tenant, the deceased had admitted himself to be the tenant in the shop in dispute and that objection to the contrary was not open to the legal representatives of Dhani Ram. I am unable to agree with this proposition. Whatever may be the value of the new plea taken up by the legal representatives of the deceased in their written statement, they cannot be compelled to delete that objection or disallowed from taking it. Once an amended plaint is filed, a legal right-accrues to the opposite party to file a fresh written statement wherein new objection can be taken in the absence of any exceptional circumstance or any statutory bar or special order of the court at the time of allowing the amendment.

(2.) In J. C. Chatterjee and others v. Sri Kishan Tandon another, 1972 AIR(SC) 2526, it was held by their Lordships that under sub-clause (ii) of rule 4 of order 22 of the Code any person who is made a party as a legal representative of the deceased is entitled to take any defence appropriate to his character as legal representative of the deceased respondent. In other words, observed their Lordships, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. It was open to the deceased in the case before me to have withdrawn the admission, if any, made by him or to have amended his written statement with the leave of the court to take up the plea which is now sought to be taken up by his legal representatives. The Supreme Court in J.C. Chatterjee's case went to the length of holding as below :-

(3.) For the reasons assigned above, I allow this petition set aside and reverse the order of the learned Rent Controller and over rule the objection raised by the respondents to the taking up of the plea urged by the petitioners in their written statement filed in reply to the amended plaint. Parties are left to bear their own costs. They have been directed to appeal before the learned Rent Controller on August 22, 1977. Records could be returned to the Rent Controller immediately.