JUDGMENT
1. A question pristinely legal has given rise to this order. As the facts are not of much consequence, only a brief resume’ would suffice.
2. On February 7,1982 Syed Murtaza Ali Khan, who was one of the defendants, died and by order dated July 30, 1982 his legal representatives were brought on the record who filed their written statement in the Registry which was placed on the record of the suit. The matter rested there for years and came to the fore only while final arguments for disposal of the main suit were being heard and that too when Mr. B. D. Sharma representing the defendants referred to the pleas taken therein. It was time for Mr. N. P. Shankardass, the learned counsel for the plaintiff, to register his protest. His objection was that the legal representatives had at no time sought the leave of the Court, nor the court had granted any, to file additional written statement and consequently the filing of the written statement ‘surreptitiously’ In the Registry would not suffice. He, in support relied upon 0. 8, R. 9 of the Code of Civil Procedure. Needless to say, Mr. Sharma found the objection unpalatable. As per him 0. 8, R. 9 would be inapplicable. He drew my attention to 0. 22, R. 4 and argued that under the said provision the legal representatives had the right to put up the defense available to them and that is what they had done.
3. What, then, is the legal position ?
4. Let me, first have a peep at the provisions. First, 0.8, R. 9. It says:
“No pleading subsequent to the written statement of a defendant other than by way of defense to a set-off (or counter-claim) shall be presented except by the leave of the Court and upon such terms as the Courts thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
And, now the relevant portion of sub-rule (2) of Rule 4 of 0. 22. It reads:
“(2) Any person so made a party may make any defense appropriate to his character as legal representative of the deceased defendant”.
5. DoesO.8,R.9controlO.22,R.4?lsit that the legal representative brought on the record must necessarily first apply under 0. 8, R. 9 and seek permission of the court before raising a defense appropriate to his character as legal representative of the deceased defendant?
6. 1 feel that 0. 8, R. 9 read in conjunction with 0. 6, R. 5 lays down a rule of pleading and deals with the situations where, for example, a party wants to make a further pleading after the written statement has been filed on account of his having failed to raise certain pleas in the original written statement, or where a minor defendant on attaining majority wants to file fresh written statement or where the defendant having not appeared previously and having been proceeded against ex parts, joins the proceedings and seeks to file written statement. The tenor of this provision shows that a party seeking to file additional written statement has necessarily to show to the court the circumstances as to why he failed to raise the pleas in the original written statement. Panchapakesan, J. tells us in Nanjan v. Selai, AIR 1958 Madras 383 as to how the matter is proceeded with under this provision. He says (Para 2):
“If the party wants to file an additional written statement, he has to file a petition stating the reason why he failed to say these things in the original written statement, and what excuse is for allowing him to file an additional written statement at that stage. Then the other side has to be given an opportunity to oppose the petition and contend that such additional written statement should not be entertained at that stage. Then the Court has to give its decision as to whether the additional written statement is to be admitted or not.”
7. In short thus, the party applying under 0. 8, R. 9 has to provide cogent reasons for permission to file additional written statement. He cannot claim it as a matter of right.And, above all, the Court, in exercise of its discretion, may or may not grant leave to present a fresh pleading.
8. On the other hand, sub-rule (2) of R. 4 of 0. 22 is not a rule of pleading. It has nothing to do with 0. 6, R. 5 or 0, 6, R, 7 and is independent of 0. 8, R. 9, It is actually complete in itself. It provides its own horizon and prescribes its own limitations. It allows a person made a party under 0. 22, R. 4, to make “any defense”, the only limitation being that the defense so made must be “appropriate to his character as legal representative of the deceased defendant.” Besides all these distinguishing features, it may be noticed that 0. 8, R. 9 invests the Court with the discretion to either allow or reject the request of the defendant for additional written statement. Its natural corollary is that a party cannot raise, as a matter of right, any fresh plea by way of additional written statement without first obtaining the leave of the Court which the Court, in its discretion, may or may not grant, However, and this to my mind is not less significant, a legal representative can and may, as A in , raise any defense which is appropriate to -his character as legal representative of the deceased defendant. And, if he chooses to raise any such defense, he being “entitled”. (See J. C. Chatterjee v. S. K. Tandon) to do so. the Court has no discretion to stop or debar him from so doing.
9. It is for the reasons recorded above, that I feel that 0. 8, R. 9 has no application. However, a judgment from Calcutta High Court needs to be noticed. Though it was not cited at the bar, as it appears to go against the view taken by me, it needs to be commented upon. It is Babu Lal v. Jeshankar, . The judgment deals only with 0. 22, R. 4. What, however, is of importance are the following lines picked up from the report:
“Leave is given to the substituted defendants to enter appearance and to make any defense appropriate to their character as legal representatives of the deceased defendant. Leave is given to the substituted defendants to file additional written statement”.
As would be borne out from the extract quoted, one does gather the impression that grant of leave is a pre-requisite. The judgment does not refer to 0. 8, R. 9 at all nor does it make any comparison between 0. 8, R. 9 and 0. 22, R. 4. It also does not say why grant of leave was considered necessary especially when it was recognised in the judgment itself that the legal representative had the “right” to make the defense. In fact, the order was passed in the absence of the legal representatives brought on the record. The point agitated before me was thus nowhere near that case.
10. As the defense raised by the substituted defendants was appropriate to their character as legal representatives of the deceased defendant, their written statement has to be taken note of. However, even if it be assumed that 0. 8, R. 9 would apply and consequently leave of the Court would be required, keeping in view the nature of the defense raised and the fact that the additional written statement has been on record for the last so many years without there being any objection from the side of the plaintiffs, leave is granted.
11. Order accordingly.
