DAYALI Vs. KUMARI LATA

JUDGEMENT

(1.) THIS revision petition has been directed against the order of Civil Judge (J.D.), Barmer dated 28th March, 2001 in Civil Original Case No. 58/93 "Kumari Lata v. Totamal" by which the application moved by the legal representatives of the defendant No. 2 Panjumal under Order 22 Rule 4(2) CPC was rejected. On the death of defendant No. 2 Panjumal, his legal representatives filed proposed written statement under Order 22 Rule 4(2) CPC alleging therein that after the death of Panjumal, they being the legal representatives have been impleaded as such. Therefore, they have every right to make any defence in the suit and to file written statement. The learned trial Court relying on the following decisions of this court, rejected the application :- (1) Rameshwarlal & Anr. v. Raghunath Das & Ors., 1977(1) RCR 474 (Rajasthan) : (WLN 1976 (UC) 387) (decided on 11.10.1976). (2) Rameshwar Prasad v. Pratap Singh & Ors. (RLR 1989(2) p. 273) (decided on 20.7.1988).

(2.) IT was argued by Mr. S.D. Vyas, learned counsel for the petitioner relying on the judgment of the Delhi High Court in Saiyed Sirajul Hasan v. Syed Murtaza Ali Khan Bahadur and Ors., 1991(2) RCR(Civil) 606 (Delhi) : AIR 1992 Delhi 162 that legal representatives can file written statement under Order 22 Rule 4(2) CPC as of right and Order 8 Rule 9 has no application in this case. There is no necessity for the legal representatives to take leave of the Court and their written statement has to be taken note of by the Court. He can raise any defence which is appropriate to his character as legal representative of the deceased defendant and if he chooses to raise any such defence, he being "entitled" to, do so, the Court has no discretion to stop or debar him from so doing. It was argued by the learned counsel that Order 8 Rule 9 has no application when a written statement is filed by the legal representative of the deceased party under Order 22 Rule 5 or Order 6 Rule 7 and is independent of Order 8 Rule 9. It allows a person made a party under Order 22 Rule 4 to make "any defence", the only limitation being that the defence so made must be "appropriate" to his character as legal representative of deceased defendant. The learned counsel relying on the judgment of the Hon'ble Apex Court in Vidyawati v. Man Mohan and Ors., 1995(3) RRR 504 (SC) : 1995 DNJ (SC) 229, it was argued that at the petitioner wife of the deceased defendant has right to implead herself or file independent suit to defend her own rights.

(3.) THE point for decision before this Court is whether the legal representatives substituted for the original defendant No. 2 under Order 22 Rule 4(2) CPC are entitled to file a separate written statement independently as of right ?