The question arises when the defendant does not accept the plaintiff’s suit. He can oppose the lawsuit allegations against him, and this way of his defense, he can file his written statement, which is known as a reply of the defendant or answer of the plaint. In the civil procedure code under Order 8 rule 9, there is a specific clause that the defendant can also file an additional written statement with the leave of the Court. But during the trial, if the defendant died and due to that reason plaintiff may add his legal heirs in his place under Order 22 Rule 4 (2) of the civil procedure code. In this circumstance, the legal heir of the defendant has substituted, and the constitutional right is open to file a written statement and take any appropriate defense can also submit an additional written statement. However, there is some difference between a supplementary written statement and a written statement.
Can legal heirs of the defendant file an additional written statement?
If the defendant expired during the pendency of the suit and after the defendant’s death, his heirs and legal representatives brought on record who sought permission to file an additional written statement. Held every party has a right to file a written statement. It is by principles of natural justice and provision of CPC o.4(2) that there is no useful purpose. It would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement.
In the case of Sumtibhai and Others vs. Paras Finance Co. Rg. Partnership Firm Beawer(Raj.) Through Smt. Mankanwar W/o. Parasmal Chordia(Dead) and Others. (2007-SCC-10-82), The supreme court held that we are sure of the opinion that the legal representatives have a right to take this defense by way of filing an additional written statement and adduce evidence in the suit. Whether this defense is accepted or not, of course, is for the Trial Court to decide. In our opinion, the courts below erred in law rejecting the applications of the heirs of the deceased to file an additional written statement.
Further supreme court observed that Every party in a case has a right to file a written statement under natural justice. The Civil Procedure Code is the rules of natural justice, which set out in grand and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already made parties in the suit, but it would be strange if they are not allowed to make a defense. In our opinion, O. 22 R. 4(2) CPC cannot construe in the manner suggested by learned counsel for the respondent.
Also, merely if some applications were rejected earlier, it does not mean that the deceased’s legal representatives should not be allowed to file an additional written statement. No useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to submit an additional written statement. In our opinion, this will violate natural justice..
In the case of Saiyed Sirajul HasanPlaintiff vs. Sh. Syed Murtaza Ali Khan Bahadur and others (AIR 1992 DELHI 162), the Delhi High Court, held, for filing a written statement by a legal representative, leave of the Court, under O. 8, R. 9 of CPC, is not necessary. A legal representative can file a written statement under O.22, R .4(2) as of right.
The High Court also observed that the party is applying under Order 8, Rule 9, has to provide compelling reasons for permission to file additional written statements. And the Court may or may not grant leave to present a new pleading in the exercise of its discretion. On the other hand, sub-rule (2) of Rule 4 of Order 22 is not a rule of pleading. It has nothing to do with Order 6, Rule 5 or O. 5, R. 7, and is independent of O. 8, R. 9. It allows a person to make a party under O. 22, R. 4, to make “any defense”, the only limitation being that the defense so established must be “appropriate to his character as a legal representative of the deceased defendant.” Therefore O. 22, R. 9 has no application in a case where legal representatives of the deceased defendant have filed a written statement under O. 22, R.4(2) without leave of the Court, and their written statement has to be taken note of by the Court..
In the case of Nitin Aggarwal Versus Santosh Aggarwal (2014 AIJ_UR 10000390), the Uttarakhand High Court held that whether legal heirs of the defendant, who proceeded ex-parte, are entitled to file their written statement after their substitution without setting aside the ex-parte proceedings order against the original defendant.
A plain reading of sub-rule (2) of Rule 4 of Order 22 C.P.C. would go on to demonstrate that legal heir may make any defense appropriate to his character as the legal representative of the deceased defendant. Given the findings recorded hereinbefore, I hold that L.R.s of the deceased defendant, who was ex-parte, may also file additional written statements after their substitution..
In the case of Bal Kishan vs. Om Prakash and another(AIR 1986 SC 1952), the Supreme Court rightly observed that Order XXII, Rule4 of the Code of Civil Procedure, 1908. provides that where one of two or more defendants die and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies.
The right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Since the action in this case related to property, the right to sue did survive, and the Rent Controller was right in bringing the legal representative of the deceased on record. Subrule (2) of Rule 4, Order XXII, authorizes any person who is born on record as the defendant’s legal representative to make any defense appropriate to his character as an authorized representative of the deceased defendant.
The said sub-rule authorizes the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant (defendant) had or could have raised except those which were personal to the deceased defendant or respondent. In the instant case, the appellant could not have, therefore, in the capacity of the deceased respondent’s legal representative who was admittedly a tenant raised the plea that he owned the building as a trespasser and the petition for eviction was not maintainable..
It is true that the Court, in an appropriate case, can implead the heirs of a deceased defendant in their capacity also in addition to bringing them on record as legal representatives of the deceased defendant, avoiding thereby a separate suit.
(1) Sumtibhai and Others vs. Paras Finance Co. Rg. Partnership Firm Beawer(Raj.) Through Smt. Mankanwar W/o. Parasmal Chordia(Dead) and Others. (2007-SCC-10-82).
(2) Saiyed Sirajul HasanPlaintiff vs. Sh. Syed Murtaza Ali Khan Bahadur and others (AIR 1992 DELHI 162).
(3) Nitin Aggarwal Versus Santosh Aggarwal (2014 AIJ_UR 10000390).
(4) Bal Kishan vs. Om Prakash and another(AIR 1986 SC 1952).