• Help in court proceeding

Sir,  
Before 1935 my grandfather (GF) and his 2 brothers were separated from joint family and they executed unregistered partition deed their ancestral properties in 1935. My GF’s elder brother have purchased house property in 1928 which is treated his self acquired in 3 brother’s joint family partition in 1935. My GF have purchased in his personal capacity after separating from his 2 brothers eleven land survey no’s and some house properties in 1938 at civil court auction in my native place. Since then we are enjoying them having in possession and paying land revenue taxes. All the revenue records stands in the name of my GF’s family members only till today which he purchased in 1938, he sold some properties out of them long ago. In 1986 after a period 48 years my GF’s elder brother have executed registered gift deed in favour of his 3rd daughter and his son-in-law, with 1/3 share only in 2 survey no’s which my GF have purchased in 1938. There is no donee’s acceptance signature in Rgtd. Gift deed. My GF’s brother (donor) and his 3 sons have got rgtd. Partitioned Deed in 1955. The donor or his sons in their partition are not claimed and not treated joint property the suit property and any other properties purchased by my GF in 1938. The donor and his sons are not claimed suit lands and purchased by my GF in 1938 in their files of A.P. land reforms at revenue divisional office during 1974-45.       
After passed away my GF we partitioned suit survey no’s and other our joint family properties and we executed rgtd. Partition deed in year 1989. My father, my brother and I jointly entered in to one schedule and my father’s mother (who died in 1991) and his 3 sisters jointly entered another schedule. My age is 52years and my brother’s age is 58years now. 
On 1994 donee obtain pass book and title deed on influence. My father filed objection petition before revenue authorities for issuing of pass book and title deed to donor. After conducting enquiry considering revenue records enjoyment, possession, title and rgtd. Partition deed in 1989 the Mandal Revenue Officer (MRO) cancelled donee’s pass book & and title deed and issued separate pass books and title deeds each other in favour of my father, my brother, me and my aunts. Since before 1989 my father, my brother & I living separately. I and my brother got separate possession, independent right and title over the suit property since 1989. After donee’s appeal before Revenue Divisional Officer (RDO) he asked both parties to approach civil court. My father filed appeal before Joint Collector’s Office, still it is pending.   
On 2005 donee’s family filed suit in sub-court against my father and my aunts only without knowledge of me and my brother. My aunts are not attended court and have not filed any written statements till today. We not have well term with them since the period of my GF. They are all collided with plaintiffs and their family and sold their entire share in suit property during 2000-10 . My father has filed false and untrue written statement (order 8 rule 1 cpc) in 2005 which is entirely different from which he already filed before RDO & MRO office. He passed away in 2007. We were impleaded as his LRS in 2008.  On August 2010 I & my brother filed true & correct detailed written statement (order 9 rule 7 CPC as r/w 151 CPC) by adopting my father’s written statement who filed before MRO and Sub-Collector’s (RDO) Office through another new advocate with recorded evidence and proof. After completion of  plaintiff chief examination, PW1 and PW2 evidence in 2012 plaintiff filed affidavit for strike off our defence in written statement filed on August 2010, they demanded that we can not deviate my father’s falls written statement. On 2013 I filed true and correct detailed chief examination affidavit (order 18 rule 4 cpc) and based on our independent right, title and possession at the end 2014 I filed IA affidavit (order 1 rule 10 r/w 151 cpc) for impleading me and my brother as independent defendants to file detailed true & correct written statement to protect & prove our rights. Recently plaintiff filed counter for dismissal of my IA (order 1 rule 10 r/w 151 cpc). Me, my brother and my father jointly sold many properties from 1989. All proceedings in the trail court pending till today.
Kindly suggest & guide me 

 Q1. Shall we have to file any separate petition to allow myself and my brother as independent defendants, we already filed  IA o1 r10 , already we 2 on record as LRs to deceased defendant(my father)?   
Q2. To allow our written statement order 8 rule 1cpc filed on 2010 in the trail court, now we want to file as per order 22 rule 4 sub-rule 2 cpc is it possible to file? Pl. refer sections and how to file?
REGARDS
Asked 1 year ago in Civil Law from Tirupati, Andhra Pradesh
1) nit is not necessary to file separate petitions to allow your self and brother as independent defendant 

2) you have already been brought on record as  LRs of the deceased defendant

3) Sc has held that LR can make application under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC praying inter alia, that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them.

4) Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.
Ajay Sethi
Advocate, Mumbai
23318 Answers
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Sumtibai & Others vs Paras Finance Co. Mankanwar W/O ... on 4 October, 2007
Author: M Katju
Bench: A. K. Mathur, Markandey Katju
           CASE NO.:
Appeal (civil)  117 of 2001

PETITIONER:
Sumtibai & others

RESPONDENT:
Paras Finance Co. Mankanwar W/o Parasmal Chordia (D)& Ors.

DATE OF JUDGMENT: 04/10/2007

BENCH:
A. K. Mathur & Markandey Katju

JUDGMENT:
J U D G M E N T MARKANDEY KATJU, J.

1.	This appeal has been filed against the impugned judgment and order dated 7.1.2000 in S.B. Civil Revision Petition No. 835of 1997.

2.	Heard learned counsel for the parties and perused the record.

3.	The Revision Petition was filed in the High Court against an order dated 6.8.1997 passed by the trial court whereby the application filed by the revisionists under Order 22 Rule 4(2) CPC read with Order 1 Rule 10 CPC was rejected.

4.	The appellants are the legal representatives of late Kapoor Chand. A suit was filed by the respondent herein against Kapoor Chand for specific performance of a contract for sale. It was alleged that Kapoor Chand had entered into an agreement to sell the property in dispute to the plaintiff- respondent, M/s. Paras Finance Co. In that agreement Kapoor Chand stated that the property in dispute was his self acquired property. During the pendency of the suit Kapoor Chand died and his wife, sons etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC praying inter alia, that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial court rejected this application against which a revision was filed by the appellant which was also dismissed by the High Court. Hence this appeal by special leave.

5.	We are of the opinion that a party has a right to take whatever plea he/she wants to take, and hence the view taken by the High Court does not appear to be correct.

6.	Learned counsel for the respondent submitted that in view of Order 22 Rule 4(2) a person who has been made a party can only take such pleas which are appropriate to his character of legal representative of the deceased. Learned counsel also submitted that two of the applicants/legal representatives of deceased Kapoor Chand, i.e. Narainlal and Devilal, had applied to the court under Order 1 Rule 10 to be impleaded, but their applications were rejected. An application was also filed by late Kapoor Chand praying that his sons be impleaded in the suit but that application was also rejected. Hence, the learned counsel submitted that the appellants cannot be permitted to file an additional written statement in this suit.

7.	Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co- owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also co-owners of the property in dispute. However, we are not expressing any final opinion on the question whether they are co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial court to decide. Hence, in our opinion, the courts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement.

8.	Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.

9.	Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others - (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.

10.	As observed by this Court in State of Orissa vs. Sudhansu Sekhar Misra (AIR 1968 SC 647 vide para 13):-

A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

11.	In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide para 18) this Court observed:-

The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.

12.	In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SC 111 (vide para 59), this Court observed:-

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

13.	As held in Bharat Petroleum Corporation Ltd. & another vs. N.R.Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:-

Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In London Graving dock co. Ltd. vs. Horton (1951 AC 737 at p. 761), Lord Mac Dermot observed:

The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge. In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, Lord Atkin`s speech . is not to be treated as if it was a statute definition it will require qualification in new circumstances. Megarry, J. in (1971)1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

The following words of Lord Denning in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.

14.	In view of the aforesaid decisions we are of the opinion that Kasturis case (supra) is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.

15.	Also, merely because some applications have been rejected earlier it does not mean that the legal representatives of late Kapoor Chand should not be allowed to file an additional written statement. In fact, no useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice.

16.	For the reasons aforementioned, the impugned orders of the High Court dated 7.1.2000 as well as the trial court dated 6.8.1997, are set aside.

The appellants shall be allowed to file additional written statement and thereafter the suit should proceed expeditiously in accordance with law.

17.	The appeal is allowed. There shall be no order as to costs.
Ajay Sethi
Advocate, Mumbai
23318 Answers
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1. The IA filed by you is sufficient to bring you on record. No separate petition is required to be filed. If the IA is not allowed by the court then you can challenge the order of the court in the High Court,

2. You will be able to file the written statement only when the court allows you to implead yourself as defendants. 

3. Referring sections will not help you. Let your lawyer do the needful.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Q1. Shall we have to file any separate petition to allow myself and my brother as independent defendants, we already filed  IA o1 r10 , already we 2 on record as LRs to deceased defendant(my father)?   

You have filed an IA under Order 1 Rule 10 (2) which is as follows : Court may strike out or add parties—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
If you have filed an IA on that aspect, you do not have to file an IA for impleading as LRs to the deceased defendant.

Q2. To allow our written statement order 8 rule 1cpc filed on 2010 in the trail court, now we want to file as per order 22 rule 4 sub-rule 2 cpc is it possible to file? Pl. refer sections and how to file?
O22Rule 4(2) is: Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
WRITTEN STATEMENT(order 8 rule 1 of Cpc.)
 Written statement.
The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]
Now you confirm your position. 
T Kalaiselvan
Advocate, Vellore
14122 Answers
127 Consultations
5.0 on 5.0
1) your defense in additional written statement cannot be struck off as SC has held that LRs brought on record are at liberty to file additional written statement 

2) further as per partition deed of 1989 you and your brother are co owners of the property . 

3) you have an independent right , title interest in the property and should make an application for being imp leaded as party defendant 

4) Apex Court in Bal Kishan Vs. Om Prakash and
another, AIR 1986 SC 1952, wherein it was held :- “The said sub-rule authorises
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 Bal Kishan, the appellant
could not have, therefore, in the capacity of the legal representative of the deceased
respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in
possession of the building as a trespasser and the petition for eviction was not
maintainable. It is true that it is possible for the Court in an appropriate case to
implead the heirs of a deceased defendant in their personal capacity also in
addition to bringing them on record as legal representatives of the deceased
defendant avoiding thereby a separate suit for a decision on the independent title as
observed in Jagdish Chander Chatterjee v. Sri Kishan (1973) 1 SCR 850 : (AIR
1972 SC 2526). The relevant part of that decision at page 854 (of SCR) : (at pp.
2528-29 of AIR) reads thus :- “Under sub-clause (ii) of Rule 4 of Order 22, Civil
Procedure Code, any person so made a party as a legal representative of the
deceased respondent was entitled to make any defence appropriate to his character
as legal representative of the deceased respondent. In other words, the heirs and the
legal representatives could urge all contentions which the deceased could have
urged except only those which were personal to the deceased. Indeed this does not
prevent the legal representatives from setting up also their own independent title,
in which case there could be no objection to the Court impleading them not merely
as the legal representatives of the deceased but also in their personal capacity
avoiding thereby a separate suit for a decision on the independent title.”
Ajay Sethi
Advocate, Mumbai
23318 Answers
1220 Consultations
5.0 on 5.0
Though your father filed a written statement before the collector, that has no impact to the present pending case in the court,  hence his written statement before the court only will  be considered by court.
However you may implead yourselves as independent defendants stating that you both are co-owners of the properties,that way you can file your own statement.
The duty of opposite party is to be object each and every thing vehemently  but they cannot prolong the issue endlessly. 
T Kalaiselvan
Advocate, Vellore
14122 Answers
127 Consultations
5.0 on 5.0
You have applied to the court to allow you to implead yourself as an independent defendant. The court has not yet allowed it. Once the court allows your IA then alone you will be able to file the WS. Till then you have to wait.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0

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