The High Court dismissed the writ petition challenging a title eviction decree. It directed the trial court to conclude the 1997 suit by March 2016 and allowed the petitioner to strike out pleadings, leaving the disposal on further application.
Allowed application to strike pleadings; directed trial court to conclude suit by March 2016.
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W.P.(C) NO. 21738 of 2012
10. 15.10.2015 Heard Mr. C.A. Rao, learned counsel for the petitioner
.
This writ petition has been filed by the petitioner challenging the order date
d 3.11.2012 passed by the learned Civil Judge (Junior Division), Sambalpur in Title (Eviction
) Suit No. 118 of 1997.
Mr. Rao, learned counsel for the petitioner states that the additional written
statement of the opp. parties 1 to 4, which has been accepted by the learned trial court, i
s contrary to the decision of this Court rendered in the case of Smt. Rita Rani Mishra and
three others v. Sachidananda Badhei and six others, 2012 (II) OLR 739.
For ready reference, paragraphs-9 and 10 of the said judgment are quoted here
in below :
9. Learned counsel for the petitioners relying heavily on Vidyawati v. Man Mo
han and others, AIR 1995 SC 1653/(1995) 5 SCC 431 submits that the petitioners having got the
mselves impleaded as parties to the suit under Order 1, Rule 10 C.P.C., observation of learne
d Court below as emphasized supra to the extent that the petitioners were substituted as lega
l representatives of original defendant No.1 late Basanta Kumar Mishra is contrary to the reco
rd and such a finding is also not sustainable in the eye of law. It is vehemently submitted
by learned counsel appearing for the petitioners that the petitioners being added as parties
under Order 1, Rule 10, C.P.C. they can set up their independent claims even by departing from
the pleadings original defendant No.1 had filed. To justify reinforcement of his contention
learned counsel for the petitioner relies on concluding paragraph of the judgment in Vidyawat
is case which reads thus:-
This being the position in law, the view of the Court below is perfectly
legal. It is open to the petitioner to implead herself in her independent capacity under Orde
r 1, Rule 10 or retain the right to file independent suit asserting her own right.
10. If the decision of Honble Supreme Court in Vidyawatis case is read in the
light of the facts of that case and provisions contained in Sub-rule (2) of Rule 4 of Order 22
, C.P.C. and Order 1 Rule 10, C.P.C. it is to be understood without any ambiguity that legal r
epresentative of deceased defendant is entitled to all the defences which were available to th
e deceased. The right said legal representative has is limited to make defence appropriate to
his character as legal representative of the deceased defendant and he can also file a writt
en statement bound by such limitation. But if the legal representative intends to make any pe
rsonal or individual defence dehors, the defence available to the deceased, he/she must get i
mpleaded in his/her personal or independent capacity under Order 1 Rule 10, C.P.C. or retain t
he right to file independent suit asserting his/her own right.
This being the position, it is open to the petitioner to file appropriate appl
ication before the trial court to strike out the pleadings of opp. parties 1 to 4. If such a
n application is filed, the same shall be disposed of in accordance with law.
Since the suit is of the year 1997, the trial court is directed to hear the suit on
day to day basis and conclude the same by the end of March,2016.
The writ petition is accordingly disposed of.
Urgent certified copy of this order be granted as per rules.
.
B. P. Ray, J.
biswal
3 issues framed by the court
Whether the legal representative's defence is limited when impleaded as such versus in independent capacity.
Whether the trial court is directed to expedite a pending suit from 1997.
Whether the petitioner should be directed to strike out pleadings of opposite parties.
Colour shows how this judgement treated each authority
Smt. Rita Rani Mishra and three others v. Sachidananda Badhei and six othersReferred¶4
Smt. Rita Rani Mishra and three others v. Sachidananda Badhei and six others, 2012 (II) OLR 739
Vidyawati v. Man Mohan and othersReferred¶6
Vidyawati v. Man Mohan and others, AIR 1995 SC 1653/(1995) 5 SCC 431 · Who else cites this
2 provisions across 2 enactments
Petitioner
Opposite Parties 1 to 4
B. P. Ray
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court