Legal representative of a deceased defendant sought a fresh opportunity to cross-examine the plaintiff already cross-examined and discharged. The High Court held that an LR merely steps into the deceased's shoes, must continue from the stage left, and cannot set the clock back; the petition was dismissed.
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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
RAJAN KUMAR SHOKEEN & ORS. .....Respondent Memo of Appearance
For the Petitioner: Mr. Bhuvneshwar Tyagi, Advocate along with petitioner in person.
For the Respondent: Mr. Dharmendra Kumar Mishra, Ms. Anjana Mishra and Mr. Neeraj Deswal, Advocates for R-1 along with respondent No.1 in person. Mr. R.N. Vats, Ms. Madhu Saini, Mr. A.K. Mishra, Mr. Tanmay Vats and Mr. Mayank Vats, Advocates for R-2(B) and R-3. Mr. Pushkar Sood and Mr. Samarth Sood, Advocates for R-5.
CORAM: HON'BLE MR. JUSTICE MANOJ JAIN JUDGMENT
MANOJ JAIN, J
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13.07.2016, 28.01.2017 and 04.02.2017 by learned counsel for defendant No.3-Mr. Bal Kishan Shokeen.
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again.
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(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where—
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act,
the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.”
"The 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 representative 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 Lrs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."
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Others 1995 (5) SCC 431 dated 01.05.1995 which reads as under:-
“…………
It is true that when the petitioner was impleaded as a party - defendant, all right under Order 22 Rule 4(2), and defences available to the deceased defendant become 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 in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the court below has taken rightly.”
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cannot, in their own right, claim to be tenant within the meaning of said Act and their contention could only be appropriate to their representative character and not one which was personal to the deceased and while holding that the ground of bona fide requirement by the landlord was personal to the statutory tenant and that, on his death, the same was not open to his legal representatives, the appeal was dismissed.
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“13. The Bombay High Court in Gopaldas (supra) has taken a different view and has held that in terms of Order XXII Rule 4(2) of CPC a party who is impleaded as a legal representative of a deceased party would be entitled to make a defence, provided that the defence does not exceed the limits of the character that he holds as legal representative. It was further held that the legal heir would be entitled to file written statement notwithstanding the fact that the original defendant has omitted to file written statement. In fact, the Bombay High Court went on to hold that the legal heir would also have a right to file a written statement in addition to the written statement if that was filed by the original defendant. The judgment in Manju Parthi (supra) was distinguished on the ground that in the said suit, ex parte decree had been passed against the original defendant.
14. With the greatest respect, I am unable to subscribe with the view taken by the Bombay High Court in Gopaldas (supra). In my considered view, the legal representatives of a defendant come into picture only as legal representatives of the deceased defendant and not in their own independent right. They cannot pitch their case higher than the original defendant. For instance, if the original defendant had chosen not to file a written statement, the legal representatives of the aforesaid defendant cannot be heard to say that they wish to file a written statement. What has to be appreciated is that legal heirs do not have any independent right as an independent party in the suit. They have only stepped into the shoes of the original defendant. Therefore, they enter into the suit at the stage where the suit is and cannot set the clock back.
15. In fact, a Single Judge of this Court in Vigro Frozen Foods (supra) has taken a view that the legal representatives cannot be permitted to set up a new case or to allow file a fresh written statement if the original defendants have already filed a written statement. This is in contrast to the view taken in Gopaldas (supra) that it is permissible for the legal representatives to file a fresh written statement in addition to the written statement filed by the original defendant.
16. While the Bombay High Court has sought to distinguish Manju Parthi (supra) on the ground that in the said case an ex parte decree was already passed against the defendant. In my view, the fact that a decree has already been passed would not make a material difference to the dicta of Manju Parthi (supra) that merely because a person is impleaded as a legal representative of the deceased defendant, he does not have the right to put the clock back and file a separate written statement. If, in a given case, one of the defendants who had not filed a written statement, passes away at the stage of evidence and his legal heirs are impleaded, the said legal heirs cannot be permitted to file a written statement at that stage and take back the suit to the stage of
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pleadings. Holding otherwise would lead to absurd results and endless delays in the adjudication of the suit. Therefore, I am in respectful agreement with the view expressed in Manju Parthi (supra), Ramgopal (supra), BabulalN. Shukla (supra) and KizhiakalathilPuthan (supra).
17. In the present case, the right of the defendant no. 3 to file written statement was closed on 20th November, 2015. It is an admitted position that the aforesaid order was not challenged either by the defendant no. 3 or subsequently by his legal heirs. Therefore, the said order has attained finality. It may also be pertinent to mention that counsel for the defendant no. 3 appeared in the suit after 20th November, 2015, when the right to file written statement was closed, on 23rd November, 2015 and 30th March, 2016 while the defendant no. 3 was still alive, but never sought time to file written statement. Perhaps, the defendant no. 3 did not intend to file written statement in the present case as he had already filed an affidavit in WP(C) 10587/2009 wherein, he had specifically admitted that right, title and interest in the suit property had been conveyed in favour of the predecessor-in-interest of the plaintiff company and that he had no objection if the petition is allowed. In fact, one of the legal heirs of the defendant no. 3, Mr. Rupin Dang also filed an affidavit in the said writ petition stating that he has no objection if the writ petition filed by the predecessor-in-interest of the plaintiff company is allowed. Therefore, in my view, grave prejudice would be caused to the plaintiff if the legal heirs of the defendant no. 3, at this stage, are permitted to set the clock back and file written statement.
18. There is no merit in the present appeal and the same is dismissed .”
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has to be appropriate to his such character and, therefore, such legal representative cannot be permitted to set the clock backwards. Herein also, the petitioner has, merely, stepped into the shoes of deceased defendant and, therefore, he must continue with the proceedings where these were left by his predecessor-in-interest . His impleadment would not give him any unfettered right to submit written statement afresh and to even cross-examine the witnesses who have already been cross-examined and discharged. Such representative cannot assert his own hostile or a completely new stand, inconsistent with the one taken by his predecessor-in-interest .
(MANOJ JAIN) JUDGE
SEPTEMBER 12, 2025/ss/pb
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1 issue framed by the court
Whether legal representatives of a deceased defendant have an absolute right under Order XXII Rule 4(2) CPC to cross-examine witnesses already cross-examined by the deceased defendant.
Colour shows how this judgement treated each authority
Jagdish Chander Chatterjee v. Sri KishanDistinguished¶19
(1972) 2 SCC 461 · Who else cites this
Vidyawati vs Man Mohan & OthersDistinguished¶20
1995 (5) SCC 431 · Who else cites this
Dabur India Ltd. v. Mani Kant DangRelied on¶27
2022 SCC OnLine Del 2579 · Who else cites this
2 provisions across 1 enactments
Hitender Shokeen
Rajan Kumar Shokeen
Others
Manoj Jain
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
Judgements on the same questions, provisions and authorities, from every court
