Gulam Sabir v. Shamsun Nisa

24.01.2011, the petitioner, who is the plaintiff before the court below, had sought rejection of the fresh written statement filed by substituted defendants/ respondents 2nd set which, according to petitioner/ plaintiff, was just contrary to the written statement filed by original defendant No.2. As has been indicated above, the present petitioner was plaintiff before the court below. Defendants second set are heirs of Late Fakhruddin, who was defendant No.2 in the court below. A question has been raised in the present case as to whether the respondents Nos. 2 to 9 being the heirs, substituted in place of defendant No.2 in the suit, could take a stand different and contrary to one taken by the original defendant, after their substitution/ impleadment in the suit.

3. The suit was filed by the petitioner claiming partition of his share in schedule-A property of the plaint to the extent of half. Fakhruddin was impleaded as defendant No.2. A plea was taken that defendant No.2 was allotted half of the property mentioned in schedule-B of the plaint, who made an oral gift of his share of property in favour of plaintiff on 05-11-2002 after being pleased with the services rendered by him and later executed a memorandum on 12-03-2003, whereafter the petitioner came in possession. The said Fakhruddin filed his written statement Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 accepting the oral gift dated 05-11-2002. The defendant No.2 is also said to have deposed as special witness and admitted the fact pleaded in the written statement. Further plea is that subsequently a petition under Order 22 Rule 4 (4) of the Code of Civil Procedure (in short the Code) was filed for exempting the plaintiff/ petitioner substituting representatives of deceased defendant No.2 which was allowed. During the pendency of the suit, at the stage of its hearing, respondents Nos. 2 to 9 filed a petition under Order 1 Rule 10 of the Code for being added as “defendants in place of deceased defendant No.2” claiming that they had inherited the share of defendant No.2. The said petition under Order 1 Rule 10 of the Code was allowed and they were impleaded as defendants Nos. 2 to 9. After filing their written statement withdrawing all the admissions which defendant No.2 made in favour of the plaintiff, they denied the oral gift of residuary share of the deceased defendant No.2 in favour of plaintiff. This occasioned the petitioner to file a petition for rejecting the written statement. However, such prayer was turned down by the court below vide order dated 18-02-2011 which is under challenge in the present application under Article 227 of the Constitution of India.

4. Learned counsel for the petitioner has submitted that Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 it was impermissible for heirs of defendant No.2, who stepped into shoes of the said defendant No.2, after his death having impleaded as party under Order 1 Rule 10 of the Code, to have taken a stand different from and contrary to one taken by the defendant No.2 himself. He has placed reliance on the following two judgement in support of his contention:- (i) (ii) (1998) 1 SCC 278 (Hiralal v. Kalyanmal & Ors) 2007 (2) PLJR 564 (Om Prakash Verma v. Smt. Shila Shukla.

5. He has contended, in view of the judgements as aforesaid, that it was obligatory for the court below to have rejected the written statement of heirs of defendant No.2, which contained a stand contrary to the earlier stand taken by defendant No.2.

6. Learned counsel appearing on behalf of respondents, on the other hand, has vehemently resisted the petition and has contended that respondents Nos. 2 to 9 in fact did not step into shoes of defendant No.2, so far as their position in the suit was concerned, because they were not substituted in place of deceased defendant No.2 in terms of Order 22 Rule 4 of the Code rather they were impleaded independently under Order 1 Rule 10 (2) of the Code. He submits that status of these respondents Nos. 2 to 9 Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 was different from that of defendant No.2 so far as pleadings before the court below were concerned. In support of his submission he has placed reliance upon the following two judgements:- (1) 2004 (3) PLJR 624 (Dr. A. Razaq v. Bibi Ruby Naz) (2) An unreported judgement of Supreme Court passed in Appeal (civil) No. 117 of 2001 (Sumtibai & Ors. v. Paras Finance Company Mankanwar.

7. Having heard learned counsel for the petitioner and learned counsel appearing on behalf of respondents Nos. 2 to 9, I find that the sole question which the present writ application involves as to whether in view of impleadment of respondents Nos. 2 to 9 as defendants under Order 1 Rule 10 of the Code, they can have the liberty to take a plea contrary to or different from the one taken by Late Fakhruddin when the death of Fakhruddin is the basis for their impleadment and whether the situation would have been different, had the respondents Nos. 2 to 9 been substituted in place of Late Fakhruddin under Order 22 Rule 4 of the Code.

8. There can be no dispute over the proposition that heirs of a party, having been substituted on the death of a party, cannot take a plea inconsistent with and contrary to the plea taken by the deceased. This question came for consideration in case of Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 Rameshray Mahto & Ors v. Amiri Mahto & Anr. reported in 2003 (3) PLJR 467 wherein this court held that in case of substitution under Order 22 Rule 4 of the Code, the heirs enter into the shoes of the deceased with all rights and liabilities and are precluded from presenting a case inconsistent with the one set up by the deceased. Similar view was taken by this court in case of Om Prakash Verma v. Shila Shukla (supra) on which strong reliance has been placed by learned counsel for the petitioner.

9. The Supreme Court in the case of Hiralal (supra), reliance on which placed by learned counsel for the petitioner, has held that once the written statement contained an admission in favour of the plaintiff, such statement cannot be allowed to be withdrawn if such withdrawal amounts to totally prejudice the case of the plaintiff and which would cause him irreparable prejudice.

10. Learned counsel for the respondents has very vehemently contended that the written statement of defendant No.2 was fraudulently filed and there was no illegality in the order of learned court below if it accepted the written statement filed by the heirs of defendant No.2. He has placed reliance on a judgement of this court reported in the case of Dr. A. Razaq (supra). I am of the view that the said judgement of this court in Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 the case of Dr. A. Razaq (supra) will have no application in the facts and circumstances of the present case as in that case the concerned defendant himself claimed that written statement was fraudulently filed. In the present case the respondents Nos. 2 to 9 were not the original defendants and they came to be impleaded on the death of Late Fakhruddin being their legal heirs. As regards the plea of respondents Nos. 2 to 9 that they were free to take a stand different from Fakhruddin because they were impleaded under Order 1 Rule 10 of the Code and not substituted under Order 22 Rule 4 of the Code, I am of the view that, in the facts and circumstances of the present case, the same cannot be accepted. The petition filed by the respondents Nos. 2 to 9 under Order 1 Rule 10 of the Code has been annexed as annexure-4 to the present application. It appears, from the said petition, that the impleadment was sought on the ground of being heirs of Late Fakhruddin. It is stated in the petition that after the death of Fakhruddin, no steps had been taken to bring heirs of Fakhruddin on record within time and, therefore, they should be impleaded as defendants. Therefore, filing of petition by respondents Nos. 2 to 9 under Order 1 Rule 10 of the Code will not change the situation. The fact remains that respondents Nos. 2 to 9 were impleaded as party in view of death of Late Fakhruddin, in place of Fakhruddin. Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013

11. I find substance in the submission made on behalf of the petitioner in view of law laid down by this court in the case of Om Prakash Verma (supra) that the respondents Nos. 2 to 9 were precluded from taking a stand different from defendant No.2 in his written statement and in course of his evidence. Reference may also be made in this regard may be made to the case of Rameshray Mahto & Ors v. Amiri Mahto & Anr. (supra), paragraph 9 of which reads thus:- “9. Learned counsel the plaintiff (respondent No.1 herein) rightly submits that the scope of Order XXII, Rule 4, CPC on the one hand, and that of Order 1, Rule 10 CPC on the other, are quite different. In the case of the former, the heirs enter into the shoes of the deceased with all rights and liabilities and are precluded from presenting a case inconsistent with the one set up by the deceased on the other hand. Order 1, Rule 10, CPC is available to a party in a situation where the party or parties are trying to enter appearance for the first time and entirely on their own, and is free to take any stand he wishes. The provisions of Order XXII, CPC apply in a situation caused by the death of a party already on record and is bound by the laws of limitation, whereas in the case of the latter, the applicant may not be bound by any such restriction. Lastly, law is well settled Patna High Court CWJC No.6814 of 2011 (4) dt.05-07-2013 that applicability of general provisions are excluded in situations where specific provisions are in force. In the present case, the provisions of Order XXII are applicable to the exclusion of Order 1, Rule 10 because the situation has arisen on account of the death of a party. A thing which cannot be done directly, cannot be permitted to be done indirectly.”

12. In view of above, the impugned order dated 18-02- 2011 passed by learned Sub Judge-VI, Sasaram in T.S. No. 49 of 2004 is set aside and the written statement filed by substituted/ impleaded defendants/ respondents 2nd set is hereby rejected.

13. This writ application is, accordingly, allowed but without costs. If the respondents Nos. 2 to 9 wish to question the legality or validity of the gift deed in question, said to have been made by late Fakhruddin, it will always open to them to do so in a separate proceeding. (Chakradhari Sharan Singh, J) BKS/-