Case Note & Summary
The petitioners, original plaintiffs, filed a suit for partition and separate possession in 1995. During the suit, defendant No.1 died, and his legal heirs (widow and son) were brought on record as defendant Nos.1(i) and 1(ii). Defendant No.1(ii) filed an application seeking permission to file a written statement, which was allowed by the trial court. The plaintiffs challenged this order, arguing that the legal representative could not raise independent pleas beyond those in the original written statement. The High Court held that a legal representative is entitled to file a written statement even if the original defendant had filed one, as long as the trial has not commenced and no prejudice is caused. The court noted that the trial had not begun and the plaintiffs could still meet the new pleas. The writ petition was dismissed, upholding the trial court's order.
Headnote
A) Civil Procedure - Written Statement by Legal Representative - Order VIII Rule 1 CPC - Legal representative of deceased defendant can file written statement even if original defendant had filed one, as long as trial has not commenced and no prejudice is caused to the plaintiffs - The court has discretion to allow such filing for proper adjudication of the suit - Held that the trial court's order granting permission was justified (Paras 4-6).
Issue of Consideration
Whether a legal representative of a deceased defendant, who has been brought on record, can be permitted to file a written statement raising independent pleas when the original defendant had already filed a written statement.
Final Decision
The writ petition is dismissed. The trial court's order dated 04/07/2015 granting permission to defendant No.1(ii) to file written statement is upheld. Rule discharged. No order as to costs.
Law Points
- Legal representative can file written statement even if original defendant had filed one
- provided trial has not commenced and no prejudice is caused
- Order VIII Rule 1 CPC is directory
- Courts have discretion to accept written statement after prescribed period for sufficient cause.
Case Details
2016 LawText (BOM) (07) 131
Writ Petition No.4924 of 2015
Shri V. B. Gawali for petitioners, Shri A. K. Neware for respondents
Nilkanth s/o Pandurang Wath and others
Amarkanth s/o Pandurang Wath (dead) through legal heirs and others
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Nature of Litigation
Civil writ petition challenging trial court order permitting legal heir to file written statement in a partition suit.
Remedy Sought
Petitioners (original plaintiffs) sought to set aside the trial court order allowing defendant No.1(ii) to file written statement.
Filing Reason
The trial court allowed the legal representative of deceased defendant to file a written statement, which the plaintiffs opposed on grounds that it raised independent pleas beyond the original written statement.
Previous Decisions
Trial court allowed application Exhibit 179 on 04/07/2015 granting permission to file written statement.
Issues
Whether a legal representative of a deceased defendant can file a written statement raising independent pleas when the original defendant had already filed a written statement.
Whether the trial court's order granting permission was justified.
Submissions/Arguments
Petitioners argued that the legal representative cannot take independent pleas beyond the original written statement and that the impugned order was without reasons.
Respondents argued that the legal representative is entitled to file a written statement as the trial had not commenced and no prejudice was caused.
Ratio Decidendi
A legal representative of a deceased defendant is entitled to file a written statement even if the original defendant had filed one, provided the trial has not commenced and no prejudice is caused to the plaintiffs. The court has discretion to allow such filing for proper adjudication of the suit.
Judgment Excerpts
The challenge in the present writ petition is to the order dated 04/07/2015 passed by the trial Court below Exhibit179 granting permission to the defendant No.1(ii) to file his written statement on record.
In the present case, the trial has not yet commenced. The written statement sought to be filed by the defendant No.1(ii) can be considered by the trial Court at the time of trial. The plaintiffs would have an opportunity to meet the pleas raised in the written statement.
Procedural History
Suit filed in 1995 for partition. Defendant No.1 died in 2014, legal heirs brought on record. Defendant No.1(ii) applied to file written statement on 04/07/2015, which was allowed by trial court. Plaintiffs filed writ petition challenging that order. High Court dismissed the petition on 22/07/2016.
Acts & Sections
- Code of Civil Procedure, 1908: Order VIII Rule 1
