| This Judgment has been overruled by : Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, |
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N.A. Britto, J.@mdashRule.
2. By consent heard forthwith.
3. The Petitioners herein are the Plaintiffs in R.C.S. No. 279/2000/C. In this Writ Petition, they challenge the Order dated 10-1-2008 of the learned Civil Judge, Junior Division at Panaji by which the Plaintiffs application dated 9-10-2007 to strike off the additional written statement dated 3-3-2004 has been rejected.
4. The Plaintiffs had filed the said Civil Suit inter alia seeking a declaration that they were the tenants of the suit premises and in the alternative had also prayed for recovery of possession of the said suit premises in case it was held that they were dispossessed.
5. The Defendant No. 2 resisted the suit pleading that Rajaram Wagle, the predecessor in title of the Plaintiffs who was the tenant in respect of the suit premises had surrendered the possession of the suit premises, wherein he along with Defendant No. 1 used to carry on the business of retail and wholesale of liquor. The Defendant No. 1 had resisted the suit pleading that he was inducted in the suit premises by Defendant No. 2 for carrying on the said business.
6. During the pendency of the suit, Defendant No. 2 expired and by virtue of Order dated 10-12-2003 the Defendants 2(i) to (vii) were brought on record and they filed a written statement on or about 3-3-2004 to which the Plaintiffs did not react till the legal representatives sought to produce certain documents based on the additional written statement. As per the Plaintiffs, the legal representatives of deceased Defendant No. 2 in the said written statement dated 3-3-2004 raised new pleas relating to the alleged title to the suit premises. In fact, as per the said legal representatives and particularly Defendant Nos.2(iii), 2(iv) and 2(vi) they came to be allotted the said suit premises in Inventory Proceedings No. 80/89/A and on the basis of the said allotment made, they have also instituted a Civil Suit bearing No. SCS/89/99/B against the present Plaintiffs restraining them from interfering with their possession of the suit premises and the said suit is pending for trial.
7. The learned Senior Counsel on behalf of the Plaintiffs, referring to the provisions of Order 22, Rule 4(2), C.P.C. contends that the said legal representatives having been brought on record in the place of deceased Defendant No. 2, could have made a defence appropriate to their character as legal representatives and could not have raised any new plea in the derogation of the plea already taken by deceased Defendant No. 2.
8. On the other hand, learned Senior Counsel on behalf of the said legal representatives of deceased Defendant No. 2 has referred to the said Order dated 10-12-2003 and contended that the said legal representatives were allowed to take a suitable defence which could be decided in the trial of the suit and in that light has placed reliance on the case of
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
9. Admittedly, the title suit for the eviction of the present Plaintiffs filed by the said daughters of deceased Respondent No. 2, namely, (iii), (iv) and (vi) is pending for trial. The legal representatives of deceased Respondent No. 2 could have taken a plea which was appropriate to their character as legal representatives and certainly could not have taken a fresh plea, derogatory to the plea already taken in the light of Sub-rule(2) of Rule 4 of Order 22, C.P.C. It is well settled that though the legal representatives can file a written statement and are entitled to take all the defences available to a deceased Defendant, they can take a plea appropriate to their character only and not contrary to a plea already taken by the deceased Defendant. Allowing the plea taken by the said legal representatives will also unnecessary widen the scope of this suit when another suit is pending before the Court. The learned trial Court by his Order dated 10-12-2003 could not have given the legal representatives any right to take any plea beyond what is contemplated by Sub-rule(2) of Rule 4 of Order 22, C.P.C. and in fact the said Order dated 10-12-2003, when read as a whole does not help the said legal representatives at all. The only reason assigned by the trial Court to dismiss the application dated 9-10-2007 was the delay in filing the said application dated 9-10-2007 which delay otherwise could have been compensated by imposing costs. Allowing the said legal representatives to take the said plea based on their title, a plea which was not taken by deceased Respondent No. 2 will certainly result in prolonging of the lis between the parties and more so because another suit based on the said plea is also pending.
10. Considering the aforesaid, the learned trial Court ought not to have allowed the said legal representatives to file additional written statement and take a plea which was not in consonance with the plea already taken by deceased Defendant No. 2 and therefore ought to have allowed the application of the Plaintiffs.
11. Consequently, the Writ Petition succeeds. The Order dated 10-1-2008 of the learned trial Court is hereby set aside and the application dated 9-10-2007 is granted. Rule is made absolute in the aforesaid terms with no order as to costs.
