Dismissed

Aniket Baburao Raut v. Dattatraya Shripatrao Kate and Others

Bombay HC3 Dec 2024WP/5464/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the striking out of an additional written statement filed by legal heirs of deceased defendants in a specific performance suit. The Court held that because the legal representatives stepped into the shoes of the original defendants rather than appearing as independent parties, they could not withdraw the original admission that the property was

What did the court decide?

Petition dismissed; suit to be disposed of expeditiously within one year.

Aniket Baburao Raut Vs Dattatraya Shripatrao… — Contract and Commercial Disputes | Bombay HC (2024)

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904-WP-5464-2024.odt

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2024:BHC-AUG:28591

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5464 OF 2024

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Aniket Baburao Raut

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VERSUS

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Dattatraya Shripatrao Kate And Others

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• Mr. D. P. Palodkar, Advocate for the Petitioner

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Mr. A. B. Kale a/w Ms. S. A. Kale, Advocate for the Respondent No. 1

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CORAM:R.M. JOSHI, J
DATE:DECEMBER 03, 2024

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PER COURT :

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1.This Petition takes exception to order dated
28.02.2024 passed below Exh. 132 filed by the Plaintiff
in Special C.S. No. 46/2012 whereby written statement
filed by the legal heirs of the deceased Defendant Nos.
1 and 2 is struck out.

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2.The facts which led to the filing of this
Petition are not in dispute. The original Plaintiff
filed suit for specific performance of the contract on
the basis of agreement to sale executed in the year
2010. The original Defendants filed written statement

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and have taken a plea that the suit property is their
self acquired property and that they are absolute owner
and possessors thereof. During the pendency of the

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Umesh PAGE 1 OF 9

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suit, Defendants died. Their LR’s i.e., present
Petitioner and others were brought on record. It is
further not in dispute that they were brought on record
in the capacity of LR’s of deceased and not in their
individual capacity or as independent Defendants. These
defendants filed additional written statement, wherein
plea contrary to the one taken by original Defendants
was sought to be taken.

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3.In the light of the aforestated facts, learned
Trial Court allowed application Exh. 132 struck out the
written statement filed by the Petitioner.

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4.Learned Counsel for the Petitioner submits

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that the Trial Court has committed error in not
considering the judgment of the Hon’ble Supreme Court
in case of Jagdish Chander Chatterjee and Others vs.

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Shri Sri Kishan and Another, (1972) 2 SCC 461 in proper
perspective. It is his submission that it is open for
the legal heirs of the deceased Defendants to set up
their own claim of independent title in the suit
property. According to them, in this case the suit
property is ancestral property and not self acquired
property of the original Defendants and it is open to

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Umesh

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them to take such defence though contrary to stand

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taken by Original Defendants. By relying upon the
paragraph 10 of the judgment cited supra, it is sought
to be canvassed that the only contingency in which such

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independent title cannot claimed by the LR’s of the
Defendants is that the Court before which the
proceeding is pending have no jurisdiction to decide
the same. He also placed reliance on the judgment of
the Hon’ble Supreme Court in case of Abdul Razak (Dead)
Through LR’s and Others vs. Mangesh Rajaram Wagle and
Others, (2010) 2 SCC 432 and has referred to paragraphs
29 to 33. It is, therefore, his contention that since
the Trial Court has jurisdiction to decide the
independent claim of the Petitioner in respect of his
title in the suit property on the basis of the claim
that the suit property is ancestral property,
application Exh. 132 deserves to be dismissed.

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5.Learned Counsel for contesting Respondent
supported the impugned order.

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6.Before dealing with legal submissions, it

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needs to be recorded that original Defendants filed
written statement wherein specific plea is taken that

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Umesh PAGE 3 OF 9

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suit property is their self acquired property. After
their death during pendency of suit, LR’s were brought

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on record. They are not joined as independent
Defendants but they stepped into the shoes of original
Defendants. Since, written statement was already filed
by the Defendants, their LR’s could file additional
written statement, if any.

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7.Now question arises for consideration before
this Court as to whether it is open for LR’s of

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original Defendants to file additional written
statement and to take contrary plea taken by their
predecessor and more particularly, when original
Defendants could not have been allowed to withdraw the
admission of suit property being their self acquired
property, the same could be allowed to be done by their
legal representatives.

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8. In order to appreciate the contentions of the learned Counsel for the Petitioner, the judgment cited supra needs to be taken a close look. In case of Bal Kishan vs. Om Prakash, (1986) 4 SCC 155 , which is referred in the judgment of Abdul Razak (Dead) Through LR’s and Others (supra), the Hon’ble Supreme Court Umesh PAGE 4 OF 9

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after considering judgment in case of Jagdish Chander

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Chatterjee(supra) and other judgments to hold that
judgment in Jagdish Chatterjee(supra) would apply only
to case where the Court hearing the case has
jurisdiction to try the issues relating to independent
title also. Apart from this, it was observed therein
that in the said case additional written statement is
filed ascertaining that 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. This was not held to be
inconsistent plea which is a plea taken by the original
Defendants.

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9.By referring to the judgment in case of

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Vidyawati vs. Man Mohan (1995) 5 SCC 431, it is

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observed thus:

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32. 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

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PAGE 5 OF 9

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Umesh

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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

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"3....Whether the petitioner has
independent right, title and interest
dehors 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 22
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
plaintiff or challenge the decree that
may be passed in the suit.” (Emphasis
supplied)

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For taking this view, the Court relied upon
the judgments in J.C. Chatterjee's case and
Bal Kishan's case.

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33.The judgments of Bal Kishan case and
Vidyawati case are clearly distinguishable.
In the first case, the earlier judgment in
Jagdish Chander Chatterjee case, which
substantially supports the appellants was
distinguished on the ground that the plea
raisedbytheimpleadedlegal
representativeofthetenantwas
inconsistent with his defence and, if
accepted, the same would result in ouster
of the jurisdiction of the Rent Controller.

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PAGE 6 OF 9

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Umesh

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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 6 Rule 16 CPC and
considering whether respondent Nos. 1 and 2
were able to make out a case for exercise
of power by the court under that provision.

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The above observations of Hon’ble Supreme

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Court clearly show that since the claim made therein by

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Appellants was in no way inconsistent with or
derogatory to the defence set up by Abdul Razak and as
the written statement was taken on record without any
objection of Respondents and evidence was also led on

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additional evidence, order impugned therein was

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Umesh

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interfered with.

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10.Now, therefore, question arises before this

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Court is as to whether merely because Trial Court has
jurisdiction to decide the title in respect of the suit
property, whether it would be permissible for the LR’s
of the deceased to take stand inconsistent/contrary to

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the one taken in the written statement filed by them.
This issue can be considered from another angel i.e.,
to say that what is prohibited for the original
Defendants would also be prohibited to the LR’s of the
Defendants. Since, it was not also permissible for the
original Defendants to file any additional written
statement and take plea inconsistent to the plea that
the suit property is self acquired and thereby withdraw
admissions given in written statement. Had it been a

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case that the Petitioner is joined as independent
Defendant, only in such case he could take any
independent plea. However, this cannot be construed
that he would be permitted to file additional written
statement to withdraw admission filed by original

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Defendants. Admittedly the Petitioner is the LR’s of
original Defendant, it would not be permitted to him to

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Umesh

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take plea inconsistent to original Defendants and which
was otherwise not permissible to be taken by the
original Defendants.

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11.In respectful view of this Court, judgments
cited supra do not help the Petitioner to support his
case, in any manner. In the result, Petition stands
dismissed.

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12.At this stage, learned Counsel for the

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Respondent seeks expeditious disposal of the suit by
the Trial Court.

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13.Since suit of year 2012, Trial Court is

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directed to decide the same expeditiously and in any
case, within a period of 1 year from today.

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PAGE 9 OF 9

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Umesh

Aniket Baburao Raut v. Dattatraya Shripatrao Kate and Others

Case brief

What is this about?

What did the court decide?

Aniket Baburao Raut v. Dattatraya Shripatrao Kate and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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