P L D 1972 Lahore 256 (PLP)

The suit out of which this revision has arisen was filed by, the respondents Amir Muhammad Khan and Muhammad Farooq Khan against Qasim Khan and Mst. Gul Bibi for partition of a building, in July 1937. Written statement was filed and issues, were framed in July 1958. On 8th October 1960, the evidence of the plaintiff‑respondent was closed. Subsequently, the defendants also closed their evidence on 21st July 1961. The case was then fixed for arguments for the 26th July 1961. Mst. Gul Bibi is said to have died after this order and the petitioner Lai Hussain, was impleaded as one of the legal representatives by order dated 22nd January 1962. On 12th October 1966, an application purporting to be under Order XXII, rule 4 and section 151, C. P. C. was filed by the petitioner for permission to file the written statement and to defend the suit. It was averred in pats. No. 6 of this petition that much prejudice bad been caused to the petitioner in the ab3ence of the amended plaint, by not providing him with an opportunity of filing the written statement or giving an opportunity to lead the evidence on issues. By this application, the petitioner wanted to re‑open the whole case. He, however, did not give any indication as to the fresh point, which would be raised by him in a new written statement. The petition was resisted by the plaintiff‑respondents and it was dismissed by the learned trial Court by order dated 8th September 167 on the ground that the evidence had already been concluded and legal representatives could not be allowed to file a written, statement. This revision petition is directed against this order. The learned counsel for the petitioner argued that under Order XXII, rule 4, sub‑rule (2), it has been provided that any person so made a party (as a legal representative) may make any defence appropriate to his character as a legal representative of the deceased defendant and as such the petitioner had a right to file a fresh written statement. The learned counsel submitted that under Order XXII, rule 4, sub‑rule (2). the petitioner had a right to file a first written statement. With a view to dispose off the above contention, it is necessary to reproduce Order XXII, rules 3 and 4, C. P. C.:‑ "Rule 3.‑(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 dies and the right to sue survives the Court, on an application made in that behalf shall cause the legal representative 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. Rule 4.‑(1) 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 dies and the rights to sue survives, the Court, on an application made in that behalf, shall cause the legal representative 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. (3) Where within the time limited by law no application is made under sub‑rule (1), the Court shall proceed with the suit and may pass a decree against the deceased defendant, and the decree so passed shall be binding only on such of the legal representatives of the deceased defendant as were not minors or persons of unsound mind throughout the aforesaid time: Provided that in the event of a legal representative being a minor or of unsound mind for a part of the aforesaid time the decree passed against the deceased defendant shall be binding on such legal representative but the time limited by law for making an application under sub‑rule (1) shall be deemed to have been extended by the number of days during which he remained a minor or was of unsound mind within the aforesaid time Provided further that a legal representative may apply for an. order to set aside‑ (a) the decree, if any, passed within the time limited or extended as aforesaid; or (b) the proceedings, or such part thereof as adversely affect his interests and which have been taken after the death of the defendant, and the Court shall, if such application was made within the time limited or extended as aforesaid and may, if it was made thereafter, on being satisfied that the legal representative was prevented by any sufficient cause from making such application within such time, make an order setting aside the decree or proceedings or a part thereof as the case may be." In Order XXII, rule 3, the deceased plaintiff's legal representatives are to be impleaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub‑rule (1) of rule 4 says that the Court shall proceed with the suit. In sub‑rule (2), however, it is provided that any person made a party as a legal representatives may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub‑rule (2) gives a right to the legal representatives to file a written statement even, though the suit may have been defended by the deceased defen dant although it may amount to re‑opening of the whole case. I think that such a construction of sub‑rule (2) of rule 4 will create numerous complications and anomalies. Sub‑rule (2) itself is not couched in such wide language. In my opinion, the compara tive reading of the two rules 3 and 4 will show that the principle that the legal representatives of the deceased are bound by what the deceased had done is not departed from nor is there any justification for holding that in case of death of the defendant, it is open to his legal representatives to nullify all the proceedings) already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XXII which relates to the impleading of legal representatives of a deceased plaintiff provides that once the legal representatives of the deceased plaintiff are made a party, the Court shall proceed with the suit which means that it i3 to proceed from the stage at which the suit was at the time of death of the deceased plaintiff and whatever proceedings were taken by the deceased plaintiff would be deemed to be binding upon the legal representatives. Sub‑rule (1) of rule 4 also makes a similar provision that after legal representatives of a deceased defendant have been impleaded, the Court shall proceed with the suit. This provision is also susceptible of only one interpretation that the proceedings already taken will not be disturbed and suit will proceed only from the stage on which it was when the deceased defendant died. Similarity of language used in sub‑rule (l) of rule 3 and sub‑rule (1) of rule 4 excludes the possibility of these two rules being interpreted differently. Rule 3 becomes effective after the suit has already been instituted by filing a plaint and the plaint already being on record no further right of filing a pleading was necessary to be given to the legal representative of the deceased plaintiff. In case of defendant, however, it is possible that the deceased defendant may not have filed a written state ment in which case it would certainly be open to the legal representatives to file one. But there may be cases where some defence may not be open to the deceased defendant but it may be open to the legal representative independently as an individual as distinguished from his capacity as legal representative. It is to meet such contingency that provision has been made in sub rule (2) of rule 4 that any person made a party as legal representative may make any defence provided it is appropriate to his character as legal representative of the deceased defendant. This provision is not to give a legal representative a right independent of the right of the deceased defendant or higher than that of the deceased defendant. On the other hand, it is a provision of limitation confining the legal representative to raise defence which could be raised by the deceased defendant. Sub‑rule (2) does not authorise a legal representative to make any defence he likes, but only to make a defence appropriate to his character as legal representative. In Sadhu Singh and others v. Firm Kahan Singh Soman Singh (A I R 1944 Lah. 473) it was held that according to clause (2) of Order XXII, rule 4 a person brought on record in place of a deceased defen dant can only make a defence appropriate to his legal character as legal representative of the deceased defendant and not in his personal capacity. In that case, defence wax that the transactions which were the subject‑matter of the case, were speculative and of wagering character with the result that if Baldeo Singh deceased incurred any liability on account thereof it would amount to an Avyavaharika debt. It was held that this was not a defence which the legal representatives could raise in their character as legal representatives as the deceased could not have raised this defence. For this reliance was placed upon Ram Ugrah Ojha and another v. Ganesh Singh (A I R 1940 All. 99) where it was held that the Court taking action under this rule was not empowered to re‑open the questions which had already been determined by the preliminary decree and the objection raised by the legal representatives to the passing of the final decree was not open to them as legal representatives of the deceased and were being raised by the legal representatives in their personal capacity. Similar view was taken in Dareepa Alagouda v. Shivalingappa (A I R 1947 Bom. 307). It was observed in Kallo v. Sawan (A I R 1924 Lah. 45) that legal representative is appointed merely in order to ensure that the suit might proceed and a decision be arrived at. It is rights and liabilities of the original parties that 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 on which it was left when the original party died and to continue it. It is not open to them to assert their own individual or hostile title to the deceased. Similarly, in K. P. K. Thamsatri Thamburathi v. K. I: T. Travathi Karavan Sankara Menon and others (A I R 1925 Mad. 245) the legal representatives wanted to oppose the second, plaintiff's claim and repudiate the action of the third plaintiff. It was held that it could not be justified by Order XXII, rule 4 clause (2) where the predecessor never raised the objection nor could have raised the defence at all. For the interpretation of sub‑rule (1) of rule 4, an authority of the Madras High Court reported in Naina Marcair and others v. Ummanaikani Ammal and others (A I R 1930 Mad. 593) is relevant where it was held that the legal representative of a deceased plaintiff was confined to the pleadings and the case of the plaintiff whose representative he was and he could not agitate in that suit his own claim against other plaintiffs in the case although he may do so in any other proceedings. It is no doubt open to the petitioner to make an application for amendment of the plaint, but that application should show in what respect the amendment is required and whether there sufficient ground for allowing the amendment. He cannot, how ever, be allowed to re‑open the case from the defence stage by invoking the provision of Order XII, rule 4, C. P. C. The revision petition has no fore and is dismissed with costs. Petition dismissed.