D.N. Joshi, J.@mdashThis revision petition has been directed against the order of Civil Judge (J.D.), Banner dated 28th March, 2001 in Civil Original Case No.58/93 "Kumari Lata v. Totamal", by which the application moved by the legal representatives of the defendant No.2 Panjumal under Order 22 Rule 4(2) CPC was rejected. On the death of defendant No.2 Panjumal. his legal representatives filed proposed written statement under Order 22 Rule 4(2) CPC alleging therein that after the death of Panjumal, they being the legal representatives have been impleaded as such. Therefore, they have every right to make any defence in the suit and to file written statement. The learned trial Court relying on the following decisions of this, rejected the application:-
(1) Rameshwarlal & Anr. v. Raghunath Das & Ors. (WLN (UC) 1976 387) (decided on 11.10.1976).
(2) Rameshwar Prasad v. Pratap Singh & Ors. (RLR 1989 (2) 273) (decided On 20.7.1988).
2. It was argued by Mr. S.D. Vyas, learned counsel for the petitioner relying on the judgment of the Delhi High Court in Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur & Ors. reported in AIR 1992 Del 162 that legal representatives can file written statement under Order 22 Rule 4(2) CPC as of right and Order 8 Rule 9 has no application in this case. There is no necessity for the legal representatives to take leave of the Court and their written statement has to be taken note of by the Court. He can raise any defence, which is appropriate to his character as legal representative of the deceased-defendant and if he chooses to raise any such defence, he being "entitled" to do so, the Court has no discretion to stop or debar him from so doing. It was argued by the learned counsel that Order 8 Rule 9 has no application when a written statement is filed by the legal representative of the deceased party under Order 22 Rule 5 or Order 6 Rule 7 and is independent of Order 8 Rule 9. It allows a person made a party under Order 22 Rule 4 to make "any defence", the only limitation being that the defence so made must be "appropriate" to his character as legal representative of deceased defendant. The learned counsel relying on the judgment of the Hon''ble Apex Court in Vidyawati v. Man Mohan & Ors. reported in 1995 DNJ (SC) 229, it was argued that the petitioner wife of the deceased defendant has right to implead herself or file independent suit to defend her own rights.
3. Mr.Manish Shishodia. learned counsel for the respondent relying on the decisiorrof the Hon''ble Supreme Court in
4. The point for decision before this Court is whether the legal representatives substituted for the original defendant No.2 under Order 22 Rule 4(2) CPC are entitled to file a separate written statement independently as of right?
5. The suit for eviction has been filed by the plaintiff on the ground of sub-letting him on reasonable and bona fide necessity of the plaintiff. The provisions of Order 22 are relevant, which are extracted as follows:-
"R.1. No abatement by party''s death, if right to sue survives. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
R.2. Procedure where on of several plaintiffs or defendants dies and right to sue survives.-Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
R.3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf,shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
R.4. Procedure in case of death of one of several defendants or of sole defendant.-(I) 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 does and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives 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."
6. "Right to sue" in Order 22, means the right to bring a suit asserting a right to the same relief, which the deceased-plaintiff asserted at the time of his death. The cause of action in the original and revived suits must be the same and no fresh cause of action can be imported into the revived suit. The continuance of a suit depends not on the qualification of the person claiming to be representative of the deceased, but on the nature of the suit. The maxim actio personalis moritur cum persona'' a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as action for damages for defamation, assault or other person injuries not causing the death of the party, and in other action where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. The test whether right to sue survives to the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants can alone be sued in the absence of the deceased plaintiff or defendant, as the case may be. In a case under Rule 2 no application for substitution is necessary i.e. when the legal representative is already on the record and the right to sue survives to the remaining plaintiff or against the surviving defendant. Rule 2 contemplates survival of the right to the remaining plaintiffs: Rule 3 applies when the right to sue does not survive to the remaining plaintiff or plaintiffs alone. In such a case, an application for substitution of the legal representatives of the deceased plaintiff is necessary. Where no application is made, the suit abates automatically without any order of the court.
7. The class of persons indicated by "legal representatives" depends on the context. Every intermeddeler in possession of part of estate is not a legal representative. The legal representative can only prosecute the cause of action as originally framed; similarly a defendant cannot raise any defence which he could not have raised against the deceased plaintiff himself. If the original plaintiff did not raise the objection regarding the pecuniary jurisdiction before the trial court at any stage, his legal representative cannot raise that question for the first time before the appellate court. Legal representative has merely right to continue the suit and he cannot make any claim to which the original -plaintiff was not entitled. Sub-rule (2) of Rule 4 provides for the death of one of two or more defendants and the survival of the right to sue against the remaining defendant or defendants alone, in which case the suit should be proceeded with against the surviving defendant or defendants. The legal representatives are bound by the pleadings of his predecessors-in-interest. They cannot set up a new case. A person substituted as legal representative of a deceased defendant can only take a defence which was open to the deceased. A person substituted in appeal is bound to adopt the pleadings of the deceased. This sub-rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased defendant (tenant) had or could have raised except those which were personal to the deceased.
8. u/s 3(vii)(b) of the Rajasthan Premises (Control or Rent and Eviction) Act (17 of 1950) "tenant" means in the event of death of the person, his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him, who had been in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him in such premises as member of those family up to his death.
9. It has been held in Rameshwaria & Anr. v. Raghunath Das & Ors. reported in WLN (UC) 1976 387 that the legal representative of deceased-defendant under sub-rule(2) of Rule 4 of Order 22 of CPC may make any defence appropriate to his Court as legal representative of the deceased-defendant. It was further held in the case that this obviously means that on the death of a party, his legal representatives are impleaded merely in order that the suit might proceed and the decision be arrived at. It is the rights and liabilities of the deceased defendant which have to be considered and not those of the legal representatives themselves. All that the legal representatives can therefore do is to take up the suit at the stage at which it was left when the original defendant died and to continue it. It is not open to them to assert their individual right or hostile title to the suit. They cannot take up a plea contrary to the one taken up by the deceased defendant.
10. It has been held in Rameshwar Prasad v. Pratap Singh & Ors. reported in RLR 1989 (2) 273 as under:-
"A legal representative must proceed with the litigation from the stage where the death of the plaintiff or defendant had taken place. He is bound by the pleadings of his predecessor in whose place he has been substituted. A legal representative substituted under Order 22 Rule 4 CPC cannot set up a new or individual right. He cannot take up a new and inconsistent plea or a plea contrary to the one taken up by the contrary to the one taken up by deceased. He thus stands in the shoes of the deceased plaintiff or defendant as the case may be and must accept the position adopted by his predecessor that is the deceased plaintiff or the deceased defendant."
11. It has been held in
"Admittedly, the settled legal position proceeding the Amendment Act, prevailing in the State of Rajasthan was that the leasehold rights of the tenanted premises for commercial or business purposes governed by the Act is not heritable. It is a personal right to the tenant. A reading of the amendment to the definition of tenant'' in Section 3 sub-clause (vii)(b) makes the legislative intent manifest that from the date the Amendment Act came into force, on the death of the tenant, his surviving spouse, son, daughter and other heir, in accordance with personal law as applicable to him, who had been in the case of the premises leased out of residential purposes, ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in such premises as members of his/her family up to his/her death would be the tenant. Therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the Court that the surviving spouse, son or daughter and other heir, in case of residential premises, he/she/they-ordinarily had been residing in the premises alongwith the tenant and continued to do so till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the lifetime of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right u/s 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy:
12. In view of the above observations of their Lordships of the Hon''ble Supreme Court, the Full Bench decision rendered in the case of Ramjivani v. Smt. Narati Bari reported in RLR 1989 (2) p.273 does not hold water as held in Chiman Lal & Anr. v. Narendra Kumar reported in WLC (Raj.) 1996 (1) 757.
13. In
"It is settled law that the legal representatives are stepped into the shoes of the deceased-plaintiff or defendant, as the case may be, and they must adopt the position occupied by his predecessor plaintiff or defendant. The legal representatives, therefore, must proceed with the litigation from the stage where death of defendant or plaintiff had taken place. They are legally bound by the pleading of his predecessors-in-interest in whose place they have been substituted. Hence, the legal representatives substituted under Order 22, R.4, CPC cannot set up a new case. The petitioners are bound by the proceedings taken so far against the deceased-defendant. They cannot be allowed to file the written statement, the right of which was closed as soon as the ex parte order was passed against the deceased-defendant Govind Ram."
In Babulal v. Jeshanker reported in AIR l972 Cal.494 it was observed as under:
"A legal representative substituted in place of a deceased-defendant cannot be permitted to make out a new case afresh in another written statement at this stage. He has to take up the suit at the stage at which it was left when the original party died and to continue it. The only right he has to make a defence appropriate to his character as a legal representative of the deceased-defendant. His case is on a different footing than the addition of a new defendant which is governed by O.I.R. 10(iv). Therefore, only the order for substitution would be served on the substituted defendant and no fresh writ or summons could be issued for service on the substituted defendant."
14. It was held in Hardev v. Jaidev through L/rs reported in 2000 (I) WLC (Raj.) 675 that legislature has infused three kinds of tenants within the fold of definition of tenant, i.e. contractual & statutory tenants as referred to in clause (a) to sub-section (vii) of Section 3 of the Rent Act and hereditary tenants who are to born on the ashes of contractual or statutory tenants as the case may be, referred to in afore-clause (a) with limited inheritable tenancy rights in respect of both residential and commercial premises as family members of the deceased. This court then held,"Court has no option except to supplement ''posthumous tenant'' by crating legal fiction in the definition of the tenant defined under sub-clause (a) and sub-clause (b) of clause (vii) of Section 3 of Act No. 17 of 1950 with limited right to him to remain in possession over the premises let out to a tenant during his life time as member of this family". It was also held as under:-
"The definition of tenant given under sub-clause (a) of clause (vii) of Section 3 cannot be read in isolation with the definition of tenant given under sub-clause (b) of clause (vii) of the said section. If the definition of the tenant is taken separately u/s 3(vii)(a) and Section 3(vii)(b) in the light of expression otherwise parted with the possession'' used under clause (e) or sub-section (I) of Section 13 of the Act then the hereditary tenant envisaged u/s 3(vii)(b) of the Act No. 17 of 1950 would never born and such separate interpretation would defeat the very object of the legislative enactment which provides u/s 3(vii)(b) that in the event of death of either contractual tenant or statutory tenant as referred u/s 3(vii)(a) his surviving spouse, son, daughter and other heirs in accordance with personal law applicable to him who had been in the case of premises leased out for residential purpose ordinarily residing and in the case of premises leased out for commercial or business purposes are ordinarily carrying on business with him in such premises as member of The family upto his death, are entitled to inherit the tenancy right of the deceased."
It has been held in Ankur Sharma v. Smt. Darshan Bali & Ors. reported in RLR 2001 (1). 783 as under:-
"Similarly once the Rajasthan Act defines tenant'' to mean such a tenant who continues to remain in possession after termination of the tenancy till a decree for eviction is passed, either during life time or after death of statutory tenant, thus the legislative intent is explicit clear that it has stressed upon continuity to have an estate or interest in the tenanted premises either residential or commercial and with that intent in view the legislature has made the enjoyed to the heirs of the deceased tenant on the condition laid down being fulfilled, so the benefit of such protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act, itself. In other words, every heir of a deceased tenant who was not residing or carrying on business during life time of a deceased tenant as member of his family is not entitled to inherit inspite of the fact that he is one of the heirs in accordance with personal law applicable to the deceased tenant. In my considered view also, for inheriting the tenancy right u/s 3(vii)(b) of the Act, possession and user of the rented premises by surviving heirs of deceased tenant referred to in sub-clause (a) during his life time is a condition precedent whether the premises is leased out for residential or for commercial purposes."
15. In view of the decisions and law cited above, the court is of the opinion that the legal representative cannot take a hostile stand to that of the deceased-defendant. It is the rights and liabilities of the deceased defendant which have to be considered and not those of the legal representatives themselves. All that the legal representatives can therefore do is to take up the suit at the stage at which it was left when the original defendant died and to continue it. It is not open to them to assert their individual right or hostile title to the suit. They cannot take up a plea contrary to the one taken up by the deceased defendant.
16. Therefore, there is no jurisdictional error in the order of the learned trial Court. The petitioners are not entitled to file independent written statement as of right being the legal representatives of the deceased-defendant.
17. In view of the above, I am unable to follow the judgment of the Delhi High Court given in Saiyed Sirajul Hasan v. Sh. Syed Murtaza Ali Khan Bahadur & Ors., reported in AIR 1992 Del. 162 relied upon by the learned counsel for the petitioners. It cannot be said that if this order is allowed to stand, it would occasion the failure of justice and will cause irreparable loss to the petitioner.
18. As far as the judgment of Vidhyati v. Man Mohan (supra) relied by the learned counsel for the petitioner is concerned, that case is distinguishable on facts. In that case the plaintiff filed a suit for possession of the property against the first defendant Brij Mohan Kapoor, deceased husband of the petitioner-second defendant. Shri Man Mohan was impleaded to represent the estate of Brij Mohan Kapoor. When they sought to file additional written statement claiming title to and interest in the property under a will said to have been executed by Smt. Champawati, the petition was dismissed by the trial Court holding that "it is not open to the present applicant to assert her own individual or hostile title to the suit". It was held that if a legal representative wants to raise any individual point which the deceased party could not have raised, he must get himself impleaded in his personal capacity or he must challenge the decree in a separate suit and in that view, she was not permitted to file the additional written statement. Challenging the order, revision filed in the High Court was dismissed.
19. Therefore, the case is distinguishable on fats. In the case in hand, the petitioners have been substituted as legal representatives of the deceased-defendant u/s 3(vii)(b) of the Act, as the tenancy was heritable but with limited purpose.
20. For the above reasons, in my opinion the learned trial Court has not committed any irregularity or illegality in the exercise of his jurisdiction while dismissing the application filed by the petitioners as the legal representatives of deceased-defendant. Accordingly, this civil revision petition being devoid of any merit is hereby dismissed with no order as to costs.
