SITA RAM RAM Vs. SHAMBHU NATH SINGH

JUDGEMENT

(1.) HEARD counsel for the petitioners.

(2.) REFERENCE may be made to the order of this Court dated 24.10.2008, which reads as follows: - "Put up this case after vacation as prayed for in order to enable the counsel for the petitioner to produce any binding precedent that a person already on record by way of defendant in a suit and debarred from filing pleading/leading evidence due to his own lache/lapse will still be entitled to a second opportunity only because he has been later on sought to be substituted as a heir after the death of his parents who were also party to the same suit." Counsel for the petitioner in this regard with reference to the procedure under Order XXII Rule 4 (2) of the Code of Civil Procedure (C.P.C.) is of the view that if a person, who was defendant, if still made a party by way of substitution of another defendant, such person will still have right to make any defence appropriate to his character as a legal representative of the deceased, defendant. He has also referred to a judgment of this Court in the case of 'Ugratara Devi vs. Deputy Collector of Land Reforms & Ors. ' reported in AIR 1974 Patna 162.

(3.) FROM a perusal of the plaint it would transpire that the plaintiff, opposite party had filed a suit tor eviction, wherein it was stated that the suit property was purchased from the petitioners on 23.12.1980 and thereafter the same suit property had given on rent to them including their mother Ram Dulari Devi. The plaintiff, opposite party, in fact, had set out the grounds for seeking eviction of all three of them and the averments made in the plaint would clearly go to show that there were absolutely no separate case of the plaintiff as against mother, vis -a -vis, the two sons (petitioners). As the turn event could have been, the mother sought permission from the Court to contest the suit and had filed her written statement, whereas, the two sons did not choose either to seek leave of the Court or to file their separate written statement. The Mother is said to have died later on and it is only after her death when these two petitioners, already on record, were sought to be substituted as legal heirs. At this stage they woke up and found themselves in a precarious situation, inasmuch as, they had never sought leave before the Court to contest the eviction suit nor had chosen to file any written statement. In such a situation, they first of all filed an application on 13.6.2007, stating therein, that leave should be given to them to contest the suit. Such application was dismissed by an order dated 13.9.2007 by the trial court by recording that after 24 years of filing of the suit such permission could not have been accorded to the petitioners.