REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 55  OF 2010 (Arising out of SLP (C) No. 2991 of 2008)

Abdul Razak (D) Through L.Rs. and others … Appellants

Versus

Mangesh Rajaram Wagle and others … Respondents

J  U  D  G  M  E  N  T

G.S. Singhvi,  J.

1. Leave granted.

2. The appellants are aggrieved by the order of the learned Single Judge of  

the Bombay High Court, Goa Bench whereby he allowed the writ petition filed by  

respondent Nos. 1 and 2 and granted their prayer for striking off the additional  

written  statement  filed  by  the  appellants  after  their  impleadment  as  legal  

representatives of defendant No.2 – Abdul Razak.

3. Respondent  Nos. 1 and 2 filed suit  in the Court of Civil  Judge (Senior  

Division), Panaji (hereinafter described as `the trial Court’) for declaring them as  

lawful tenants of suit premises and also for restraining the defendants – Suresh  

D.  Naik  (respondent  No.3  herein)  and  Abdul  Razak,  who  died  during  the  

pendency  of  the  suit  and  is  being  represented  by  his  legal  representatives  

(appellants herein) to remove the lock allegedly put by respondent No.3 on the  

suit premises along with materials dumped there.  An alternative prayer made by  

respondent Nos. 1 and 2 was for recovery of possession of suit premises in case  

it was held that they had already been dispossessed. The substance of the case  

set up by respondent Nos. 1 and 2 before the trial Court is that the suit premises  

were let out to their predecessor Shri Rajaram D. Wagle in 1951 by one Jussab  

Abdul Karim at a monthly rent of Rs.15/- which was subsequently increased to  

Rs.25/-;  that  the  owner-cum-landlord  sold  the  premises  to  Abdul  Kadar  Haji  

Jaffar (grandfather of appellant Nos.2, 3, 4 and 6); that Rajaram D. Wagle died  

on 29.4.1981 and after his death they have been using the suit premises for  

parking their cars; that on 5.1.1992, respondent No.3 broke open the lock of the  

suit premises and dumped his goods i.e., boxes of liquor bottles, but the same  

were removed by the police on a complaint made by respondent No.1 in that  

regard;  that  on  8.1.1992,  respondent  No.  3  again  broke  open  the  lock  and  

forcibly occupied the suit premises and this time the police did not act on the  

complaint made by them.

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4. In his written statement, respondent No.3 not only denied the averments  

contained in the plaint that he had illegally taken possession of the suit premises  

after breaking open the locks put by respondent Nos. 1 and 2, but also pleaded  

that after being forced to leave Kuwait in the wake of war, he came to India and  

is doing business of distribution of liquor in the suit premises on the basis of  

permission accorded by defendant No.2 – Abdul Razak, who was a family friend.  

Respondent  No.3  further  pleaded  that  the  competent  authority  granted  him  

excise licence after being satisfied that the suit premises were suitable for doing  

business in liquor.

5. Abdul  Razak  (predecessor  of  the  appellants)  filed  a  separate  written  

statement.  He largely denied the averments contained in the plaint and pleaded  

that much before his death, Shri Rajaram D. Wagle had voluntarily surrendered  

the suit premises and thereafter, respondent No.3 was allowed to occupy the  

same for conducting business of distribution of liquor.

6. Abdul  Razak  died  during  the  pendency  of  the  suit.   Thereupon,  

respondent Nos. 1 and 2 filed an application for impleading his widow (appellant  

No.1), son and three daughters (appellant Nos. 2, 3 4 and 6) and two son-in-

laws (appellant Nos. 5 and 7) in place of the deceased.  Appellant Nos. 3, 4 and  

6 objected to the impleadment of the son-in-laws by stating that they are non-

Goans and are not governed by personal law relating to properties in Goa.  They  

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also objected to the impleadment of appellant Nos. 1 and 3 i.e., the widow and  

son of the deceased on the ground that the suit premises had been allotted to  

them in the inventory proceedings.

7. By  order  dated  10.12.2003,  the  learned  trial  Court  overruled  all  the  

objections raised by appellant Nos. 3, 4 and 6 and allowed the application of  

respondent Nos. 1 and 2 by observing that joining of the widow, son and son-in-

laws of the deceased will not prejudice the daughters and they will be entitled to  

take defence suitable to their plea.

8. In  furtherance  of  the  observation  made  by  the  trial  Court  in  the  

aforementioned order,  the appellants  filed  additional  written statement  dated  

3.3.2004, the sum and substance of which is that in the inventory proceedings  

No.80/1989/A held in the Court of Civil Judge (Senior Division) at Panaji after the  

death of Abdul Kadar Haji Jaffar and his wife, the suit property was allotted to  

their grand-daughters (appellant Nos.3, 4 and 6) because other heirs did not  

object to this.  The appellants pleaded that in the meeting held on 10.4.1990,  

members  of  the  Family  Council  unanimously  agreed  for  allotment  of  the  

properties and this was approved by the Court vide order dated 26.9.1990.  A  

reference was also made to Special Civil Suit No. 89/99/B filed by appellant Nos.  

3, 4 and 6 in the trial Court for grant of permanent injunction on the ground that  

respondent Nos. 1 and 2 had filed Execution Application No.15/98/A for being  

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put in possession of the suit  premises in execution of order dated 17.4.1997  

passed in an application for temporary and mandatory injunction.  According to  

the appellants, the trial Court allowed the execution application and the appeal  

and special leave petition filed by them were dismissed by the High Court and  

this Court respectively.  In the additional written statement, it was also averred  

that son-in-laws of late Abdul Razak have no right, title or interest in the suit  

property and, therefore, they cannot be treated as his legal representatives.  The  

impleadment of appellant No.2 was also questioned on the premise that he has  

no right in the suit property.

9. After filing of the additional written statement, the trial Court framed the  

following additional issues:

1. Whether  the  plaintiffs  prove  that  defendants  illegally  damaged and destroyed the two ramps existing adjacent  to the  entrance of the suit premises?

2. Whether the plaintiffs prove that the suit filed by them for  declaration of tenancy right is maintainable for want of the owners  of the suit premises?

3. Whether the plaintiffs prove that Sajeeda Razak, Matheen I  Saint, Mohammad Arif Razak Ajaz Ahmed are legal representatives  of deceased defendant No.2 impleaded in the suit as defendants  2(i), 2(ii), 2(v) and 2(vii) respectively.

What relief? What order?

10. Respondent Nos. 1 and 2 did not object to the taking on record of the  

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additional written statement filed by the appellants or framing of the additional  

issues and led evidence, the recording of which was completed during 2006.  

Thereafter, the appellants produced their evidence. When the case was fixed for  

cross-examination of appellant No.3, who is one of the witnesses cited by the  

appellants, respondent Nos. 1 and 2 filed application dated 9.10.2007 for striking  

off the additional written statement by asserting that the legal representatives of  

the  deceased  defendant  No.2  do  not  have  right  under  the  Code  of  Civil  

Procedure (CPC) to file such written statement and, in any case, they cannot be  

allowed to raise new plea about their title to the suit premises.  Respondent Nos.  

1 and 2 further  pleaded that  the additional  written statement  is  liable to be  

struck off because before filing the same, the appellants did not seek leave of  

the  court.   In  their  reply,  the appellants  pleaded that  the  additional  written  

statement was filed with a view to bring on record the facts relating to the  

inventory proceedings and the same cannot be struck off because the applicants  

have failed to make out a case for exercise of power by the court under Order VI  

Rule 16 CPC.

11. The trial Court dismissed the application of respondent Nos. 1 and 2 by  

observing  that  leave  of  the  Court  will  be  presumed  to  have  been  granted  

because the additional written statement was filed on 3.3.2004 and respondent  

Nos. 1 and 2 had not objected to the same.  As regards their plea that new or  

inconsistent  case was sought  to  be set  up by the appellants,  the trial  Court  

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observed that this point can be considered at the time of deciding the case on  

merits.   The  trial  Court  then  referred  to  Order  VI  Rule  16  and  held  that  

respondent Nos. 1 and 2 have not been able to make out a case for striking off  

the additional written statement.  

12. Respondent Nos. 1 and 2 challenged the order of the trial Court in W.P.  

No. 58/2008.  By the impugned order, the learned Single Judge allowed the writ  

petition  and  held  that  the  legal  representatives  of  deceased  defendant  No.2  

could  have  taken  a  plea  which  was  appropriate  to  their  character  as  legal  

representatives, but they were not entitled to take a plea derogatory to the plea  

already taken.  The learned Single Judge further held that the trial Court was not  

justified in dismissing the application on the ground of delay, which could have  

been compensated by imposing cost.

13. We have heard learned counsel for the parties.   Three questions which  

merit consideration by this Court are –  

(i) What is the effect of delay in filing the application by respondent Nos. 1  

and 2 for striking off the additional written statement?

(ii) Whether the High Court could pass an order for striking off the additional  

written statement despite the fact that respondent Nos. 1 and 2 failed to  

make out a case for exercise of power by the court under Order VI Rule  

16 CPC?

(iii) Whether the High Court was justified in setting aside the order of the trial  

Court without being satisfied that the same was vitiated by an error of  

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jurisdiction or an error of law apparent on the face of the record and that  

such error resulted in substantial failure of justice?

Re: (i):

14. Undisputedly, the additional written statement was filed on 3.3.2004 and  

the same was taken on record without any objection from respondent Nos. 1 and  

2, who did not even seek leave of the court to file further pleadings in the light  

of the additional written statement.  Although, the parties have not furnished  

details of the proceedings of the case for next about two years, this much is  

clear that respondent Nos.1  and 2 led evidence in support of their case and  

completed the same in 2006.   In the absence of any contrary evidence, it can be  

reasonably and legitimately presumed that respondent Nos. 1 and 2 must have  

produced  their  evidence  keeping  in  view  the  pleadings  contained  in  the  

additional written statement. They filed application for striking out the additional  

written statement after a long time gap of three years and six months without  

explaining as to why they did not object to the taking on record of the additional  

written statement and framing of additional issues in 2004 and why they chose  

to  lead  evidence  knowing  fully  well  that  after  their  impleadment  as  legal  

representatives of Abdul Razak, appellant Nos. 3, 4 and 6 had pleaded that they  

had  become  owners  of  the  property  by  virtue  of  the  orders  passed  in  the  

inventory proceedings.   The learned Single Judge casually brushed aside and  

rejected the plea of the appellants that the application filed by respondent Nos. 1  

and 2 for striking off the additional written statement was highly belated and no  

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explanation worth the name had been offered for the same by observing that the  

trial Court could have compensated them by imposing cost.  In our view, the  

learned Single Judge should have seriously examined the issue of delay in the  

backdrop of the facts that respondent Nos. 1 and 2 did not object to the taking  

on record the additional written statement or framing of additional issues and led  

their evidence and further that the application was filed after almost one year of  

completion of their evidence.  The observation made by the learned Single Judge  

that the proceedings of the suit will be delayed if the legal representatives of the  

deceased defendant are allowed to take the plea based on their title is neither  

here  nor  there.  It  is  true  that  the suit  filed  by respondent  Nos.  1 and 2 is  

pending for last about 17 years, but there is nothing on record to show that the  

appellants  or their  predecessors are responsible for the delay.  The death of  

Abdul  Razak  was  not  a  predictable  event,  the  happening  of  which  could  be  

averted by the parties  or  the court.   In any case,  the appellants  cannot  be  

blamed for  the delay,  if  any,  in  the trial  of  the case.   As  a  matter  of  fact,  

respondent Nos. 1 and 2 have delayed the proceedings for over two years by  

filing frivolous application for striking off the additional written statement which,  

as mentioned above, was taken on record in March, 2004.

Re: (ii):

15. Order  VI  Rule  16  CPC  which  empowers  the  Court  to  strike  out  the  

pleadings reads thus:

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“Striking out pleadings. – The Court may at any stage of the  proceedings order to be struck out or amended any matter in any  pleading--

(a) which may be unnecessary, scandalous, frivolous or vexatious,  or

(b) which may tend to prejudice, embarrass or delay the fair trial of  the suit, or

(c) which is otherwise an abuse of the process of the court.”

16. A reading of the plain language of the above reproduced provisions makes  

it clear that the court’s power to strike out any pleading at any stage of the  

proceedings can be exercised in either of the three eventualities i.e., where the  

pleadings  are  considered  by  the  court  unnecessary,  scandalous,  frivolous  or  

vexatious; or where the court is satisfied that the pleadings tend to prejudice,  

embarrass or delay the fair trial of the suit or which is otherwise considered as  

an abuse of the court.   

17. Normally, a court cannot direct or dictate the parties as to what should be  

their pleading and how they should prepare their pleadings.  If the parties do not  

violate  any  statutory  provision,  they  have  the  freedom to  make  appropriate  

averments and raise arguable issues.  The court can strike off the pleadings only  

if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious  

or tend to prejudice, embarrass or delay the fair trial of the suit or the court is  

satisfied that suit is an abuse of the process of the court.  Since the striking off  

pleadings has serious adverse impact on the rights of the concerned party, the  

power to do so has to be exercised with great care and circumspection.  In  

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Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J. Observed:

“It seems to me that the rule that the Court is not to dictate to  parties how they should frame their case, is one that ought always  to be preserved sacred.  But that rule is, of course, subject to this  modification and limitation, that the parties must not offend against  the rules of pleading which have been laid down by the law; and if  a party introduces a pleading which is unnecessary, and it tends to  prejudice,  embarrass  and  delay  the  trial  of  the  action,  it  then  becomes a pleading which is beyond his right.  It is a recognized  principle that a defendant may claim ex debito justitiae to have the  plaintiff’s claim presented in an intelligible form, so that he may not  be embarrassed in meeting it; and the Court ought to be strict even  to severity in taking care to prevent pleadings from degenerating  into the old oppressive pleadings of the Court of Chancery.”

18. The above reproduced observations have been quoted with approval in  

Sathi Vijay Kumar v. Tota Singh and others (2006) 13 SCC 353.  In that  

case, the order passed by the High Court deleting paragraphs 11, 12 and 13(a)  

from the election petition filed by the appellant was questioned before this Court  

on the ground that the case does not fall within the ambit of Order VI Rule 16.  

This Court first held that the provisions of Order VI Rule 16 CPC are applicable to  

election petitions.  The Court then referred to the earlier judgments in Roop Lal  

Sathi v. Nachhattar Singh Gill  (1982) 3 SCC 487,  K.K. Modi v. K.N. Modi  

(1998) 3 SCC 573, Union Bank of India v. Naresh Kumar (1996) 6 SCC 660  

and held that the power to strike out pleading is extraordinary in nature and  

must be exercised by the Court sparingly and with extreme care, caution and  

circumspection.

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19. In this case, the learned trial Court did make a reference to the provisions  

of  Order  VI  Rule  16  and  held  that  the  application  made  by  the  plaintiffs  

(respondent Nos. 1 and 2 herein) does not fall in either clauses of Rule 16.  The  

learned Single Judge of the High Court did not even bother to notice Order VI  

Rule 16 what to say of considering its applicability to the pleadings contained in  

the additional written statement and granted the prayer of respondent Nos. 1  

and 2 by assuming that the plea raised by the appellants was inconsistent with  

the defence set up by their predecessor-in-interest.  In our opinion, the learned  

Single Judge did not have the jurisdiction to direct striking off  the additional  

written statement without being satisfied that respondent Nos. 1 and 2 were able  

to make out a case for exercise of power by the court under either of three  

clauses of Order VI Rule 16 CPC.

Re: (iii) :

20. Although,  from  the  record  produced  before  this  Court  it  is  not  clear  

whether respondent Nos. 1 and 2 had filed writ petition under Article 226 of the  

Constitution of  India or they had invoked supervisory jurisdiction of  the High  

Court under Article 227 of the Constitution, but a reading of the impugned order  

does not leave any manner of doubt that while granting relief to respondent Nos.  

1 and 2, the learned Single Judge did not keep in mind the guiding principles laid  

down by  this  Court  for  exercise  of  power  under  Articles  226  or  227  of  the  

Constitution.  It seems to us that the learned Single Judge decided the matter by  

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assuming that he was hearing an appeal against the order of the trial Court.  If  

this  was  not  so,  the  learned  Single  Judge  was  duty  bound to  first  consider  

whether  he  was  called  upon  to  exercise  power  under  Article  226  of  the  

Constitution of India or under Article 227 thereof.  If respondent Nos. 1 and 2  

had invoked the High Court’s  jurisdiction under Article 226,  then the learned  

Single  Judge  ought  to  have considered  whether  the  trial  Court  committed  a  

jurisdictional error by refusing to strike off the additional written statement filed  

by the appellants or it was a case of failure  on the part of the trial Court to  

exercise the power vested in it under Order VI Rule 16 CPC or the order under  

challenge was vitiated by an error of law apparent on the face of the record or  

there was violation of the rules of natural justice.  In either case, the learned  

Single Judge was also required to consider whether there has been substantial  

failure of justice or manifest injustice has been caused to respondent Nos. 1 and  

2  on  account  of  the  trial  Court’s  refusal  to  strike  off  the  additional  written  

statement.  These are the parameters laid down by this Court in Syed Yakoob  

v. K.S. Radhakrishnan AIR 1964 SC 477.  If the petition filed by respondent  

Nos. 1 and 2 was under Article 227 of the Constitution of India, then the learned  

Single Judge should have taken note of the often quoted judgment in  Surya  

Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, in which a two-Judge Bench,  

after  threadbare  analysis  of  Articles  226  or  227  of  the  Constitution  and  

considering large number  of  judicial  precedents on the subject,  recorded the  

following conclusions:

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“(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in  Section 115 of the Code of Civil  Procedure cannot and does not  affect  in  any  manner  the  jurisdiction  of  the  High  Court  under  Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the  High Court, against which remedy of revision has been excluded by  CPC Amendment Act 46 of 1999 are nevertheless open to challenge  in,  and  continue  to  be  subject  to,  certiorari  and  supervisory  jurisdiction of the High Court.

(3) Certiorari,  under Article 226 of the Constitution, is issued for  correcting gross errors of jurisdiction i.e. when a subordinate court  is  found  to  have  acted  (i)  without  jurisdiction  —  by  assuming  jurisdiction  where  there  exists  none,  or  (ii)  in  excess  of  its  jurisdiction — by overstepping or crossing the limits of jurisdiction,  or (iii) acting in flagrant disregard of law or the rules of procedure  or acting in violation of principles of natural justice where there is  no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is  exercised for keeping the subordinate courts within the bounds of  their  jurisdiction.  When  a  subordinate  court  has  assumed  a  jurisdiction  which  it  does  not  have  or  has  failed  to  exercise  a  jurisdiction which it does have or the jurisdiction though available is  being exercised by the court in a manner not permitted by law and  failure  of  justice  or  grave  injustice  has  occasioned  thereby,  the  High Court may step in to exercise its supervisory jurisdiction.

(5)  Be  it  a  writ  of  certiorari  or  the  exercise  of  supervisory  jurisdiction, none is available to correct mere errors of fact or of  law unless the following requirements are satisfied: (i) the error is  manifest  and  apparent  on  the  face  of  the  proceedings  such  as  when  it  is  based  on  clear  ignorance  or  utter  disregard  of  the  provisions of law, and (ii) a grave injustice or gross failure of justice  has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be  perceived or demonstrated without involving into any lengthy or  complicated  argument  or  a  long-drawn  process  of  reasoning.  Where two inferences are reasonably possible and the subordinate  court has chosen to take one view, the error cannot be called gross  or patent.

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(7) The power to issue a writ  of certiorari  and the supervisory  jurisdiction are to be exercised sparingly and only in appropriate  cases where the judicial conscience of the High Court dictates it to  act lest a gross failure of justice or grave injustice should occasion.  Care, caution and circumspection need to be exercised, when any  of the abovesaid two jurisdictions is sought to be invoked during  the pendency of any suit or proceedings in a subordinate court and  the  error  though  calling  for  correction  is  yet  capable  of  being  corrected  at  the  conclusion  of  the  proceedings  in  an  appeal  or  revision preferred thereagainst and entertaining a petition invoking  certiorari  or  supervisory  jurisdiction  of  the  High  Court  would  obstruct  the  smooth  flow  and/or  early  disposal  of  the  suit  or  proceedings. The High Court may feel inclined to intervene where  the error is such, as, if not corrected at that very moment, may  become  incapable  of  correction  at  a  later  stage  and  refusal  to  intervene would result in travesty of justice or where such refusal  itself would result in prolonging of the lis.

(8)  The  High  Court  in  exercise  of  certiorari  or  supervisory  jurisdiction will not convert itself into a court of appeal and indulge  in  reappreciation  or  evaluation  of  evidence  or  correct  errors  in  drawing inferences or correct errors of  mere formal or technical  character.

(9) In practice, the parameters for exercising jurisdiction to issue a  writ  of  certiorari  and  those  calling  for  exercise  of  supervisory  jurisdiction  are  almost  similar  and  the  width  of  jurisdiction  exercised  by the  High Courts  in  India  unlike  English  courts  has  almost  obliterated  the  distinction  between  the  two  jurisdictions.  While exercising jurisdiction to issue a writ of certiorari, the High  Court may annul or set aside the act, order or proceedings of the  subordinate courts but cannot substitute its own decision in place  thereof. In exercise of supervisory jurisdiction the High Court may  not  only give suitable  directions  so as to guide the subordinate  court as to the manner in which it would act or proceed thereafter  or afresh, the High Court may in appropriate cases itself make an  order  in  supersession  or  substitution  of  the  order  of  the  subordinate court as the court should have made in the facts and  circumstances of the case.”

21. We  regretfully  note  that  while  deciding  the  writ  petition  filed  by  

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respondent Nos. 1 and 2, the learned Single Judge did not keep in mind the  

principles  laid  down by this  Court  in the aforementioned two judgments  and  

decided the same as if he was exercising appellate jurisdiction of the High Court.  

There have been several  other instances in which different High Courts have  

passed orders in exercise of power under Articles 226 or 227 of the Constitution  

of  India  disregarding the  limitations  identified  and indicated by this  Court  in  

several decisions on the exercise of that power.   We hope and trust that in  

future  the  High  Courts  would  keep  in  view  the  limitations  of  certiorari  

jurisdiction/supervisory jurisdiction and refrain from deciding the writ petitions  

filed under  Article  226 or petitions/applications  filed under  Article  227 of  the  

Constitution as if they are adjudicating appeals filed against the orders of the  

lower courts or other judicial/quasi judicial bodies/authorities.

22. Before concluding, we deem it appropriate to consider the argument of  

the learned counsel for respondent Nos. 1 and 2 that the pleadings contained in  

the additional written statement filed by the appellants were inconsistent with  

and beyond the scope of  the defence set  up by Abdul  Razak in the original  

written statement and the trial Court was duty bound to discard the same in view  

of the provision contained in Order 22 Rule 4 CPC and the judgments of this  

Court in J.C. Chatterjee v.  Sri Kishan  (1972)   2   SCC  461,   Bal Kishan v.  

Om Parkash  (1986)  4  SCC 155  and    Vidyawati v.   Man  Mohan   (1995)  

5 SCC 431.     In our  opinion, the  argument  of   the  learned  counsel  is  

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meritless  and deserves to be rejected.  In the plaint filed by them, respondent  

Nos. 1 and 2 did not make a mention of the inventory proceedings held after the  

death of Abdul Kadar Hazi Jaffar and his wife and order dated 26.9.1990 passed  

by the trial Court.  In his written statement, Abdul Razak pleaded that before his  

death,  the tenant  Shri  Rajaram D. Wagle had surrendered possession  of  the  

premises to him and that the plaintiffs had nothing to do with the suit premises.  

He further  pleaded that  the suit  premises were given to  defendant  No.2 for  

conducting business of distribution of liquor.   There is nothing in the written  

statement of Abdul Razak from which it  can be inferred that he has claimed  

ownership over the suit property.  After they were brought on record as legal  

representatives  of  late  Abdul  Razak,  the  appellants  filed  additional  written  

statement  incorporating  therein  the  plea  that  the  suit  property  had  become  

subject matter of inventory proceedings No.80/89/A and the same was allotted  

to the daughters of Abdul Razak i.e. appellant Nos.3, 4 and 6.  The appellants  

also pleaded that in the meeting of the Family Council  held on 10.4.1990, a  

unanimous decision was taken for allotment of the properties and the same was  

approved  by  the  trial  Court  vide  order  dated  26.9.1990.   According  to  the  

appellants, Abdul Razak was looking after the suit property because at the time  

of death of his parents, appellant Nos. 3, 4 and 6 were minor.  Therefore, it  

cannot be said that the plea raised by the appellants is inconsistent with the  

averments contained in the original written statement by Abdul Razak.  Order 22  

Rule  4(1)  and  (2)  CPC  on  which  reliance  has  been  placed  

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by learned counsel for respondent Nos. 1 and 2 reads as under:

“4. Procedure in case of death of one of several defendants  or of sole defendant.—(1) Where one of two or more defendants  dies and the right to sue does not survive against the surviving  defendant  or  defendants  alone,  or  a  sole  defendant  or  sole  surviving defendant dies and 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.

(2) Any person so made a party may make any defence appropriate  to his character as legal representative of the deceased defendant.”

23. In J.C. Chatterjee’s case, this Court interpreted the above reproduced  

provision and held:

Under sub-clause (ii) of Rule 4 of Order 22 of the 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.

24. In  Bal Kishan’s case, the proposition laid down in  J.C. Chatterjee’s  

case was reiterated, but its width was limited by observing that the same would  

apply only to those cases where the Court hearing the case has jurisdiction to try  

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the issues relating to independent title also.  The facts of  Bal Kishan’s case  

were that respondent No. 1 therein filed a petition for eviction of the tenant by  

alleging that the latter had sublet the premises without his consent.  During the  

pendency of the petition, the tenant Musadi Lal died.  Thereupon, the appellant  

Bal  Kishan  filed  an  application  for  being  brought  on  record  as  legal  

representative of the deceased.   The Rent Controller  allowed the application.  

Thereafter, the appellant filed additional written statement asserting therein that  

the premises in question being residential and commercial, the legal heir of the  

tenant could not be treated as a tenant as defined under Section 2(h) of the  

Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of  

such legal heir  of the tenant would be that  of  a trespasser.   He accordingly  

prayed for dismissal of the eviction petition.  The Rent Controller rejected the  

appellant’s plea and allowed the eviction petition by holding that Musadi Lal had  

sublet the premises to Med Ram without his consent.  The appeal and revision  

filed by the appellant were dismissed by the Appellate Authority and the High  

Court respectively.  Before this Court, the appellant relied upon the ratio of J.C.  

Chatterjee’s case and argued that he was entitled to raise an additional plea  

that the eviction petition was not maintainable.  While rejecting this plea, this  

Court held:

But in the instant case the appellant cannot claim the benefit of the  above decision for two reasons. First, the appellant had not been  brought on record as a respondent in the eviction petition in his  personal capacity but had been brought on record only as the legal  representative of Musadi Lal. Secondly, in the circumstances of this  

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case, even if a prayer had been made to bring the appellant on  record in his personal capacity, the Rent Controller could not have  allowed  the  application  and  permitted  him  to  raise  the  plea  of  independent title because such a plea would oust the jurisdiction of  the Rent Controller to try the case itself. The observations made in  the    Jagdish Chander Chatterjee case   have to be confined to only    those cases where the court hearing the case has jurisdiction to try  the issues relating to independent title also. The Rent Controller,  who had no jurisdiction to pass the decree for possession against a  trespasser could not have, therefore, impleaded the appellant as a  respondent to the petition for eviction in his independent capacity.  

(emphasis supplied)

25. In  Vidyawati’s  case,  this  Court  considered  the  question  whether  a  

person  impleaded  as  a  legal  representative  of  the  deceased  defendant  can  

independently claim title to and interest in the property under a will.  It was  

contended by the appellant that claim of the original defendant and that of the  

legal representative are founded on the will executed by Champawati and the  

courts below were not right in refusing to permit her to file additional written  

statement.   While  approving  the  view taken by the courts  below,  this  Court  

observed “whether the petitioner has independent right, title and interest de hors  

the claim of the first defendant is a matter to be gone into at a later proceeding.  

It is true that when the petitioner was impleaded as a party-defendant, all rights  

under Order XXII Rule 4(2), and defences available to the deceased defendant  

became available to her.  In addition, if the petitioner had any independent right,  

title or interest in the property, then she had to get herself impleaded in the suit  

as a party-defendant.   Thereafter,  she could resist the claim made  by  the  

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plaintiff or challenge the decree that may be passed in the suit.  For taking this  

view, the Court relied upon the judgments in J.C. Chatterjee’s case and Bal  

Kishan’s case.   

26. The judgments of Bal Kishan’s case and Vidyawati’s case are clearly  

distinguishable.   In the first  case,  the earlier  judgment  in  J.C.  Chatterjee’s  

case,  which  substantially  supports  the  appellants  was  distinguished  on  the  

ground that the plea raised by the impleaded legal representative of the tenant  

was inconsistent with his defence and, if  accepted, the same would result in  

ouster of the jurisdiction of the Rent Controller.  In the second case also, the  

Court found that the plea raised by the appellant, who was impleaded as legal  

representative of the defendant that she had independent title under the will  

executed by Champawati  was not  in consonance with the plea taken by the  

original defendant.  However, as discussed in the earlier part of the judgment,  

the claim made by the appellants is in no way inconsistent with or derogatory to  

the defence set up by Abdul Razak.  In any case, once the additional written  

statement filed by the appellants was taken on record without any objection by  

respondent  Nos.  1  and  2,  who  also  led  their  evidence  keeping  in  view the  

pleadings of the additional  written statement,   the High Court was not at all  

justified in allowing the application filed for striking off  the additional  written  

statement and that too without even adverting to Order VI Rule 16 CPC and  

considering whether respondent Nos. 1 and 2 were able to make out a case for  

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exercise of power by the court under that provision.

27. In the result,  the appeal is allowed.  The impugned order of the High  

Court is set aside and the one passed by the trial Court is restored.  Respondent  

Nos. 1 and 2 shall pay cost of Rs.25,000/- to the appellants for burdening them  

with unnecessary litigation.   

……………………………….…J. [G.S. Singhvi]

………………………………..J. [Asok Kumar Ganguly]

New Delhi January 07, 2010

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