The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.433 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Sukanta Bhatta & Ors. …. Petitioners -versus- Radhamohan Dev Bije & Ors. …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. A.K.Mohanty, Advocate For Opposite Parties : Mr. S.Mishra, Advocate for
Legal Reasoning
filing their written statement, had approached this Court in W.P.(C) No.6853 of 2010 challenging order dated 6th October 2009 passed by the Trial Court. This Court vide order dated 25th November 2019 permitted all such Defendants who were the Petitioners in W.P.(C) No.6853 of 2010 (including original Defendant No.14) to file their written statement within a period of two weeks thereof. Pursuant to order dated 25th November 2019 of this Court Defendants No.8(b), 11, 12, 15 and 16(b) have filed their written statement. But in the meantime, original Defendant No.14, who was Petitioner No.5 in W.P.(C) No.6853 of 2010, died on 4th September 2016 and he was then substituted by Defendants No.14(a) & 14(b) vide order dated C.M.P. No.433 of 2025 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 13th January 2020 of the Trial Court. Be that as it may, Petitioner
Arguments
O.P.48 & 50 Mr. A.Mishra, Advocate for O.P.18, 19 and 20 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 9th October 2025 B.P. Routray, J. 1. Heard Mr. A.K.Mohanty, learned counsel for the Petitioners, Mr. S.Mishra, learned counsel for Opposite Parties 48 and 50 and Mr. A.Mishra, learned counsel for Opposite Parties 18, 19 and 20. C.M.P. No.433 of 2025 Page 1 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 2. Notice to other Opposite Parties were not sent on the request of the Petitioners as Opposite Parties 18, 19 and 20 are the contesting Opposite Parties. 3. Present Petitioners being the Plaintiff filed T.S. No.406 of 1988 praying for declaration of right over the suit scheduled properties and permanent injunction along with other consequential reliefs. 4. Initially Defendants No.14 and others having been deprived of
Decision
No.5 in the writ petition was not substituted till disposal of the writ petition on 25th November 2019. Nevertheless, order dated 13th January 2020 permitting substitution of original Defendant No.14 vice Defendants No.14(a) to 14(b) was never challenged by any of the parties. After substitution was effected, Defendant No.14(a) on the date of his appearance, i.e. on 22nd December 2021 filed a memo stating to adopt the written statement earlier filed by Defendant No.8(b), 11, 12, 15 and 16(b). It is needless to say that learned Trial Court has accepted the prayer of Defendant No.14(a) as per his memo to adopt the written statement on his part. This order of learned Trial Court dated 22nd December 2021 is also not challenged by any of the parties till date. 5. Subsequently Defendant No.14(a) died and he was substituted vice his LRs Viz. 14(a)(i) to 14(a)(iii). Said newly substituted Defendants upon their appearance filed a written statement on their part which was accepted by the Trial Court vide order dated 2nd December 2024. C.M.P. No.433 of 2025 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 6. Being aggrieved by order dated 2nd December 2024 of the Trial Court, Plaintiffs approached this Court in CMP No.35 of 2025. This Court (Co-ordinate Bench) vide order dated 15th January 2025 disposed of the CMP as withdrawn with an observation that in the event the Plaintiffs file an application for recall of order dated 2nd December 2024 with fresh objection, the same shall be considered in accordance with law. Consequently a petition dated 18th January 2025 was filed by the Plaintiffs to recall the earlier order dated 2nd December 2024. The learned Trial Court upon consideration has rejected the prayer of the Plaintiffs to recall its earlier order dated 2nd December 2024, and the same is the order impugned in the present CMP. 7. Mr. Mohanty, learned counsel for the Petitioners submit that the earlier acceptance of memo of Defendant No.14(a), who was the predecessor of present Defendants No.14(a)(i) to 14(a)(iii), cannot be held in accordance with law to treat the W.S. of other Defendants as one filed from the side of these Defendants. According to Mr. Mohanty, the pleadings which were not filed in terms of the provisions contained in Order 7 and Order 8 of the CPC cannot be taken as pleadings on record on behalf of a particular party. He C.M.P. No.433 of 2025 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 further emphasizes that a memo without any verification and affidavit with regard to the contents of the pleadings cannot be treated as a valid document to accept or adopt the pleadings filed by others. 8. Mr. S.Mishra and Mr. A.Mishra, learned counsels appearing for those Opposite Parties submit that when the order of acceptance of the memo filed by Defendant No.14(a) to adopt the W.S. filed by other Defendants was never questioned to raise objection on such order of the Trial Court permitting Defendant No.14(a) to adopt the written statement of other Defendants, now it cannot be questioned in the present stage. In addition, it is submitted by Mr. A.Mishra, learned counsel for Defendants No.14(a)(i) to 14(a)(iii) that the written statement presently filed by these Defendants after they were brought on record upon substitution is not different from the earlier W.S. filed by other Defendants and adopted by previous Defendant No.14(a). Therefore, there should not have any objection on the part of the Plaintiffs to accept such written statement filed on behalf of present Defendants No. 14(a)(i) to 14(a)(iii). C.M.P. No.433 of 2025 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 9. Mr. Mohanty, learned counsel for the Petitioners relies on the decision of this Court passed in Anantram Bhotra vs. Pratima Bhotra & Ors, AIR 2024 Ori 126, to substantiate his contention that a substituted Defendant do not have any right to file his independent W.S. different from the written statement filed by his predecessor. But as it seen from the given facts of the present case, the said decision cited by Mr. Mohanty is not found applicable to present facts of the case for the reason that present CMP is on the question that whether the initial memo filed by Defendant No.14(a) adopting the written statement of others would be questioned at this stage. At the same time, there is no difference of opinion among the parties that present W.S. filed by Defendants No. 14(a)(i) to 14(a)(iii) is not containing any additional or new fact than the previous adopted written statement. 10. The Hon’ble Supreme Court in Mohammed Yusuf vs. Faij Mohammad & Ors., 2009 (3) SCC 513, have explained upon analysis of other previous decisions on the right of the Defendant to file his written statement beyond the statutory period mentioned in the CPC. However, this citation as relied by Mr. Mohanty, learned counsel for the Petitioners is not found relevant in the given facts of C.M.P. No.433 of 2025 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 the present case. It is true that a substituted Defendant, who steps into the shoe his predecessor in the capacity of legal representative, has no right to file a separate written statement taking a new stand than taken in the previous written statement filed by his predecessor. Rule 4(2) of Order XXII, CPC prescribes that the party substituted may make any defence appropriate to his character as legal representative of deceased defendant. In Niranjan Sahu vs- Gouri Sahu and others, 2016 (Sup-II) OLR 245, this court have stated as follows; “10. From the decisions cited (supra), it is pellucid that sub-rule (2) of Rule 4 of Order 22 authorizes the legal representative of a deceased defendant to file an additional written statement raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent. If the legal representative has an independent right, title and interest over the property, then he has to get himself impleaded in the suit as a party defendant and set up his own independent right, title and interest or challenge the decree that may be passed in the suit. He cannot take contrary plea diametrically opposite to the deceased-defendant. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, it may be said that the legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. When a party to C.M.P. No.433 of 2025 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 a suit dies and his legal representatives are substituted, the rights and liabilities of the original party have to be considered, but not those of legal representatives. It is not permissible on the part of the legal representative to make a prayer to ignore the written statement filed by the deceased-defendant and accept his written statement, which is a complete departure from the written statement filed by defendant no.2.” 11. In the instant case, as stated earlier the previous order dated 22nd December 2021 of the Trial Court, wherein the memo of Defendants No.14(a) was accepted to permit him to adopt the written statement filed by other Defendants, was never challenged by any of the party till date and to say specifically, in the present challenge also, the Plaintiffs did not question the veracity of said order of the Trial Court dated 22nd December 2021. Therefore, the order of the Trial Court dated 22nd December 2021 remaining unchallenged till date gives the right in favour of erstwhile Defendant No.14(a) to have his W.S. by way of adoption to the W.S. of other Defendants Viz. Defendants No.8(b), 11, 12, 15 and 16(b). Therefore, present substituted Defendants No. 14(a)(i) to 14(a)(iii) have accrued their right of their defence as per the written statement accepted on the part of deceased Defendant No.14(a). The approach of Defendants No. 14(a)(i) to 14(a)(iii) to file fresh written statement, even if the same is stated to be similar as to the earlier C.M.P. No.433 of 2025 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 written statement filed by other Defendants and adopted by deceased Defendant No.14(a) cannot be treated as valid at this stage since the substituted Defendants have their right and interest limited to the estate of deceased defendant. Once the deceased Defendant had presented his written statement, there is no necessity on the part of the substituted Defendants being the LRs to take a different stand. Though it is submitted that the present written statement filed by said substituted Defendants is similar and copy of the earlier written statement, then there is no need of filing further written statement on their part once the written statement on behalf of deceased Defendant No.14(a) was accepted by the Court. So the written statement filed by Defendants No. 14(a)(i) to 14(a)(iii) cannot be accepted at this stage. As such, the direction of the Trial Court to accept the fresh written statement filed on behalf of Defendants No. 14(a)(i) to 14(a)(iii) is set aside and the right of pleading of these Defendants should be within the limits of the pleadings filed by deceased Defendant No.14(a), i.e. as adopted by him in terms of order dated 22nd December 2021 of the Trial Court. 12. With such observation, it would be not unworthy to say here that since the suit is a year old one, the Trial Court should do well to C.M.P. No.433 of 2025 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Oct-2025 18:01:33 dispose of the same expeditiously and the parties are directed to cooperate for the same. 13. The CMP is disposed of accordingly. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.433 of 2025 Page 10 of 10