ALOK SHARMA,J. - (1.) Heard the counsel for the petitioner-defendants (hereinafter 'defendants') and perused the impugned order dated 22.02.2018 passed by the Additional District and Sessions Judge No.2, Beawar whereby it has been held that the additional written statement at the instance of the legal representatives of the original defendant Kana alias Kanhaiya Lal albeit taken on record without the leave of the court be excluded from the pleadings in the suit and be kept in Part-D of the court file. The trial court further held that consequently neither the defendant's application under Order 6, Rule 17 CPC read with section 151 of CPC to amend the said additional written statement first filed without the court's leave nor their application under Order 14, Rule 5 CPC for framing of additional issues based on the amended written statement needed address and hence were both infructuous. The defendants are aggrieved and hence this petition.
(2.) The facts of the case are that a suit for cancellation of the release deed dated 20.08.2010 was filed by respondent-plaintiff no.1 Mangi Bai. One Kana alias Kanhaiya Lal was impleaded as a defendant along with others and summons of the suit being served inter alia on Kanhaiya Lal also, he filed his written statement on 30.04.2013. Issues based thereon were framed on 04.06.2016. Following the death of Kanhaiya Lal, his legal representatives were taken on record by resort to Order 22, Rule 4 CPC. They then appear to have filed an additional written statement without the leave of the court. The trial court then noticing the error in taking on record the additional written statement of the legal representatives of Kanhaiya Lal has in the impugned order held that the code of civil procedure does not visualize such multiplicity of written statements at the instance of a defendant/his legal representative on record following his death and it was therefore liable to be struck off its record.
(3.) Mr.J.P. Gupta, counsel for the defendant submitted that the written statement of the legal representatives of Kanhaiya Lal was filed on 16.04.2015 without any objection either by the Court or the plaintiffs. It therefore could not have been directed subsequently to be taken off the record of the suit and kept in Part-D of the court file. It was submitted that even otherwise as the legal representatives of the deceased defendants Kanhaiya Lal the defendants were entitled to take all defences in consonance with their status in the suit. Reliance was placed on the judgment of the Apex Court in the case of Abdul Razak (D) through LRs. And Others v. Mangesh Rajaram Wagle and Others [(2010) 2 SCC 432].;