Case Note & Summary
The petitioner, original plaintiff, filed a suit for declaration, partition, separate possession and permanent injunction against the respondents. Original defendant no.1 died pending suit. Both parties had already led evidence, including cross-examination of witnesses. The suit was fixed for final arguments and the petitioner had filed written notes of arguments. At that stage, the legal representatives of defendant no.1 (respondent nos.1(a) and 1(b)) filed an application under Order XXII Rule 4(2) CPC seeking permission to adduce evidence and cross-examine the petitioner and other witnesses. They adopted the written statement of their father and did not set up an independent defence. The trial court allowed the application, holding that evidence of legal representatives was not yet closed and it was necessary to bring major and important facts on record. The petitioner challenged this order. The High Court examined the scope of Order XXII Rule 4(2) CPC and relied on Supreme Court judgments in Vidyawati v. Man Mohan, Bal Kishan v. Om Parkash, and Jagdish Chander Chatterjee v. Sri Kishan. The court held that legal representatives who adopt the deceased's written statement can only make a defence appropriate to their character as legal representatives, i.e., within the rights available to the deceased. If they have an independent right, they must be impleaded in their personal capacity. Since the legal representatives here had not set up an independent defence and had not been impleaded in personal capacity, the trial court's order was erroneous. The High Court quashed the order and dismissed the application.
Headnote
A) Civil Procedure - Legal Representatives - Order XXII Rule 4(2) CPC - Right to Adduce Evidence - Legal representatives who adopt the written statement of the deceased defendant cannot set up an independent defence or adduce additional evidence unless they are impleaded in their personal capacity. The court held that the trial court erred in allowing the application under Order XXII Rule 4(2) as the legal representatives had no independent right and the defence must be within the rights available to the deceased defendant. (Paras 6-17)
B) Civil Procedure - Legal Representatives - Independent Defence - Impleadment - If legal representatives have an independent right, title or interest in the suit property, they must get themselves impleaded in their personal capacity to set up such defence. The court clarified that the legal representatives should specify the capacity in which they are impleaded to determine the scope of defence under Order XXII Rule 4(2). (Paras 9-16)
Issue of Consideration
Whether legal representatives of a deceased defendant, who have adopted the written statement of the deceased and have no independent defence, can be permitted to adduce further evidence and cross-examine witnesses at the stage of final hearing.
Final Decision
The High Court allowed the writ petition, quashed the trial court's order dated 14/10/2022, and dismissed the application filed by the legal representatives of defendant no.1.
Law Points
- Order XXII Rule 4(2) CPC
- legal representatives
- independent defence
- additional evidence
- cross-examination
- partition suit
Case Details
2024 LawText (BOM) (10) 80
Writ Petition No. 902 of 2023
Shri S.N. Bhattad for petitioner, Shri Alok Daga for respondent no.1(a), Shri U.K. Bisen for respondent nos.1(b) and 2
Smt. Saraswatha w/o Sampatrao Bhoyar
Late Ravindra s/o Sadashiv Khodke, since deceased, through legal heirs and others
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Nature of Litigation
Civil writ petition challenging an order permitting legal representatives of deceased defendant to adduce further evidence in a partition suit.
Remedy Sought
Petitioner sought quashing of the trial court's order dated 14/10/2022 allowing the legal representatives to adduce further evidence and cross-examine witnesses.
Filing Reason
The trial court allowed the application of legal representatives to adduce further evidence at the stage of final hearing, which the petitioner contended was erroneous as the legal representatives had adopted the deceased's written statement and had no independent defence.
Previous Decisions
The trial court allowed the application under Order XXII Rule 4(2) CPC on 14/10/2022.
Issues
Whether legal representatives who adopt the deceased defendant's written statement can be permitted to adduce further evidence and cross-examine witnesses under Order XXII Rule 4(2) CPC.
Whether the trial court's order allowing such evidence was erroneous.
Submissions/Arguments
Petitioner argued that legal representatives, having adopted the written statement of the deceased, have no independent right to put up a new defence and relied on Vidyawati v. Man Mohan.
Respondents argued that they inadvertently failed to cross-examine and examine witnesses, and that Order XXII Rule 4(2) permits them to make any defence appropriate to their character as legal representatives.
Ratio Decidendi
Legal representatives who adopt the written statement of the deceased defendant can only make a defence appropriate to their character as legal representatives, i.e., within the rights available to the deceased. They cannot set up an independent defence or adduce additional evidence unless they are impleaded in their personal capacity. The trial court erred in allowing the application under Order XXII Rule 4(2) CPC without considering this distinction.
Judgment Excerpts
Thus, the Supreme Court has held that once the legal representatives of the deceased defendant are brought on record, all rights under Order XXII Rule 4(2) and defence available to the deceased defendant would be available to the legal representatives.
In my view, so far as first set of rights are concerned, sub-rule (2) of Rule 4 of Order XXII of the Code, which provides that the legal representatives having been made party to the suit may make any defence appropriate to their characters as legal representatives of the deceased defendant, will permit legal representatives to make defence as available to the deceased defendant.
Thus, where the legal representative has independent right, he has to get himself impleaded as party defendant in independent capacity and the said remedy is available to him even during the lifetime of his predecessor.
Procedural History
The petitioner filed a suit for declaration, partition, separate possession and permanent injunction. Original defendant no.1 died pending suit. Both parties led evidence and cross-examined witnesses. The suit was fixed for final arguments. Legal representatives of defendant no.1 filed an application under Order XXII Rule 4(2) CPC seeking permission to adduce evidence and cross-examine. The trial court allowed the application on 14/10/2022. The petitioner challenged this order by way of writ petition before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXII Rule 4(2)
