Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd August, 2022
DABUR INDIA LTD ..... Plaintiff
Through: Mr. Sudhir K. Makkar, Senior Advocate with Ms. Saumya Gupta, Ms. Veera Mathai and Mr. Sanjay Jha, Advocates
Through: Ms. Sonam Anand, Advocate for
LR’s of defendant No.3
JUDGMENT
1. The present chamber appeal has been filed on behalf of legal representatives of the defendant no.3 impugning the order dated 9th March, 2018 passed by the Joint Registrar, whereby the application filed on behalf of the appellants seeking condonation of delay in filing the written statement was dismissed.
2. The present suit for specific performance was filed in 2014 seeking specific performance of the Agreement to Sell dated 22nd December, 1992, 12th August, 1993 and 10th November, 1993 and execution of sale deed in respect of property bearing no. 1 (old no. 3), Factory Road, New Delhi- 2022:DHC:3267
110029. The suit was instituted against the defendants no.1, 2 and 3, who are brothers and the defendants no.4 and 5, who are children of pre-deceased brother of the defendants no.1, 2 and 3.
3. Counsel appeared on behalf of the defendant no.3 on 14th July, 2015 and sought a complete set of the paper book. It was noted in the order dated 28th August, 2015 that the complete set of documents were supplied to the defendant no.3 on 7th August, 2015 and that written statement shall be filed by the defendant no.3 within four weeks from 7th August, 2015.
4. In the order dated 5th November, 2015 passed by the Joint Registrar, it was noted that the defendant no.3 has been suffering from cancer and the counsel for the defendant no.3 undertook to file written statement along with an application for condonation of delay. Subsequently, vide order dated 20th November, 2015, the right of the defendant no.3 to file written statement was closed.
5. Thereafter, counsel appeared on behalf of the defendant no.3 on subsequent dates, but never sought time to file written statement. The defendant no.3 expired on 23rd July, 2016 and an application being I.A. No.13559/2016 under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC) for substitution of the legal heirs of the defendant no.3 was filed on behalf of the plaintiff and the said application was allowed on 17th April, 2017 and legal heirs of the defendant no.3 were taken on record.
6. An application in I.A. No.4936/2017 was filed on behalf of the legal heirs of the defendant no.3, seeking permission to file written statement, which was dismissed as withdrawn on 9th October, 2017. Thereafter, I.A. No.14339/2017 was filed on behalf of the legal heirs of the defendant no.3 seeking condonation of delay of 807 days in filing the written statement. The said application was dismissed by the Joint Registrar vide order dated 9th March, 2018. The relevant observations of the impugned order are set out below: “ On careful perusal of record, it is found that the defendant no.3 was duly served with summons of the suit during his lifetime and sufficient time was granted to him for filing of written statement. Ultimately vide order dated 20.11.2015, the right of defendant no.3 to file written statement was closed by the Ld. Predecessor. The defendant no.3 has reportedly expired on 23.07.2016 and thereafter his LRs were taken on record vide order dated 17.04.2017. The order dated 20.11.2015, regarding closure of right to file written statement of defendant no.3, was never challenged or sought to be recalled at any point of time either by the defendant no.3 during his lifetime or by the LRs after his death. By way of the present application, the LRs of defendant no.3 are merely seeking the condonation of delay of 807 days in a mechanical manner without touching the implications of order dated 20.11.2015, which is not permissible under law. There does not arise any question of condonation of delay in the given manner during existence of order dated 20.11.2015. Not only this, the contents of the present application are not sufficient enough to explain the inordinate delay in filing of written statement. In the given facts and circumstances, I am of the considered view that the present application is not only not maintainable in the given scenario, the same is devoid of merits as well. Accordingly, the present application is dismissed. I.A stands disposed of.”
7. Counsel for the appellants places reliance on Order XXII Rule 4 (2) of CPC, which is set out hereinafter: “4. Procedure in case of death of one of several defendants or of sole defendant.— (1) xxx xxx xxx xxx (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.”
8. She submits that in view of the aforesaid provision, a legal representative of the deceased defendant would have an absolute right to file a written statement. She places reliance on the judgment of the Bombay High Court in Gopaldas & Co. v. Gopaldas Corporation, 2020 SCC OnLine Bom 101, in support of her submissions that even if the right of the original defendant to file written statement was closed, the legal heirs of the said defendant shall have the right to file written statement in terms of Order XXII Rule 4 (2) of CPC. She further submits that there was no delay in moving the application seeking condonation of delay as the same was filed soon after the legal heirs were impleaded vide order dated 17th April, 2017. It is further submitted that no prejudice would be caused to the plaintiff if the legal heirs of the defendant no.3 are permitted to file written statement at this stage.
9. Per contra, counsel for the respondent plaintiff has placed reliance on the judgment of this Court in Manju Parthi & Ors. v. Rohit Parthi, 2007 SCC OnLine Del 1491 and Vigro Frozen Foods P. Ltd. v. S.K. Gandhi and Anr., 2011 SCC OnLine Del 5051, to submit that once the right of the original defendant to file written statement has been closed, legal heirs cannot be permitted to file written statement. He further submits that the defendant no.3 or his legal heirs did not challenge the order dated 20th November, 2015, whereby the right to written statement was closed and therefore, it has rightly been observed in the impugned order dated 9th March, 2018, that the application for seeking condonation of delay is not maintainable. He further submits that the legal heirs of the defendant no.3 along with the defendant no.3 had filed an affidavit in writ petition, being Writ Petition (Civil) No.10587/2009 filed on behalf of the Sanat Products Ltd., the predecessor-in-interest of the Plaintiff and therefore, at this stage, they cannot be permitted to file a written statement taking a stand contrary to that taken in the aforesaid writ petition.
10. I have heard the rival submissions.
11. The Single Judge of this Court in Manju Parthi (supra) dealt with the issue, whether the legal representative of a deceased defendant, who was already proceeded against ex parte and has not filed the written statement, is entitled to file written statement. After analysing various judgments passed by different High Courts, this Court took the view that the legal heirs stepped into the shoes of the original defendant and therefore, they do not get the right to put the clock back and file written statement. The relevant observations of the court in paragraph 4 of Manju Parthi (supra) are set out below: “4. For the following reasons, I locate no substance in these submissions. The law laid down in the above said authority does not dovetail with the facts of the present case. The facts of the present case are altogether different. It must be borne in mind that in this case the deceased defendant was proceeded against ex parte. He was deprived of the right to file the written statement. The petitioner has stepped into his shoes. The petitioner is not authorised to alter or amend that situation. The proceedings are to start from that stage where the same were left by his father. Merely because he is legal representative of the deceased defendant, he does not get a new right to put the clock back and file the written statement as if the case had started afresh. Procedure is not meant to hamper the cause of justice or sanctify miscarriage of justice. The only remedy open to the petitioner is to move application for setting aside the ex parte decree, if sufficient grounds exist in his favour or that of his predecessor, or, if, he has got independent right, he can move an application for impleadment nor merely as a LR of the deceased but also in his personal capacity.”
12. Similar view was also taken by the Rajasthan High Court in Ramgopal v. Khiv Raj, AIR 1998 RAJASTHAN 98, Babulal N. Shukla v. Jeshankar N. Shukla, 1972 SCC OnLine Cal 42 and Kizhiakalathil Puthan Veettil Thavazhi Karnavan v. Sankunni Variar, 1934 SCC OnLine Mad
162.
13. The Bombay High Court in Gopaldas (supra) has taken a different view and has held that in terms of Order XXII Rule 4(2) of CPC a party who is impleaded as a legal representative of a deceased party would be entitled to make a defence, provided that the defence does not exceed the limits of the character that he holds as legal representative. It was further held that the legal heir would be entitled to file written statement notwithstanding the fact that the original defendant has omitted to file written statement. In fact, the Bombay High Court went on to hold that the legal heir would also have a right to file a written statement in addition to the written statement if that was filed by the original defendant. The judgment in Manju Parthi (supra) was distinguished on the ground that in the said suit, ex parte decree had been passed against the original defendant.
14. With the greatest respect, I am unable to subscribe with the view taken by the Bombay High Court in Gopaldas (supra). In my considered view, the legal representatives of a defendant come into picture only as legal representatives of the deceased defendant and not in their own independent right. They cannot pitch their case higher than the original defendant. For instance, if the original defendant had chosen not to file a written statement, the legal representatives of the aforesaid defendant cannot be heard to say that they wish to file a written statement. What has to be appreciated is that legal heirs do not have any independent right as an independent party in the suit. They have only stepped into the shoes of the original defendant. Therefore, they enter into the suit at the stage where the suit is and cannot set the clock back.
15. In fact, a Single Judge of this Court in Vigro Frozen Foods (supra) has taken a view that the legal representatives cannot be permitted to set up a new case or to allow file a fresh written statement if the original defendants have already filed a written statement. This is in contrast to the view taken in Gopaldas (supra) that it is permissible for the legal representatives to file a fresh written statement in addition to the written statement filed by the original defendant.
16. While the Bombay High Court has sought to distinguish Manju Parthi (supra) on the ground that in the said case an ex parte decree was already passed against the defendant. In my view, the fact that a decree has already been passed would not make a material difference to the dicta of Manju Parthi (supra) that merely because a person is impleaded as a legal representative of the deceased defendant, he does not have the right to put the clock back and file a separate written statement. If, in a given case, one of the defendants who had not filed a written statement, passes away at the stage of evidence and his legal heirs are impleaded, the said legal heirs cannot be permitted to file a written statement at that stage and take back the suit to the stage of pleadings. Holding otherwise would lead to absurd results and endless delays in the adjudication of the suit. Therefore, I am in respectful agreement with the view expressed in Manju Parthi (supra), Ramgopal (supra), Babulal N. Shukla (supra) and Kizhiakalathil Puthan (supra).
17. In the present case, the right of the defendant no.3 to file written statement was closed on 20th November, 2015. It is an admitted position that the aforesaid order was not challenged either by the defendant no.3 or subsequently by his legal heirs. Therefore, the said order has attained finality. It may also be pertinent to mention that counsel for the defendant no.3 appeared in the suit after 20th November, 2015, when the right to file written statement was closed, on 23rd November, 2015 and 30th March, 2016 while the defendant no.3 was still alive, but never sought time to file written statement. Perhaps, the defendant no.3 did not intend to file written statement in the present case as he had already filed an affidavit in WP(C) 10587/2009 wherein, he had specifically admitted that right, title and interest in the suit property had been conveyed in favour of the predecessorin-interest of the plaintiff company and that he had no objection if the petition is allowed. In fact, one of the legal heirs of the defendant no.3, Mr. Rupin Dang also filed an affidavit in the said writ petition stating that he has no objection if the writ petition filed by the predecessor-in-interest of the plaintiff company is allowed. Therefore, in my view, grave prejudice would be caused to the plaintiff if the legal heirs of the defendant no.3, at this stage, are permitted to set the clock back and file written statement.
18. There is no merit in the present appeal and the same is dismissed.
19. Issues have already been framed and affidavit of evidence has been filed on behalf of the plaintiff’s witnesses.
20. List before the Joint Registrar on 13th September, 2022 for fixing dates of trial. AMIT BANSAL, J. AUGUST 23, 2022 dk/at