the power to strike out pleading is extraordinary in nature and must be exercised by the Court sparingly: Supreme Court

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 55 OF 2010
(Arising out of SLP (C) No. 2991 of 2008)
Abdul Razak (D) Through L.Rs. and others … Appellants

Versus

Mangesh Rajaram Wagle and others … Respondents
J U D G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. The appellants are aggrieved by the order of the learned Single Judge of

the Bombay High Court, Goa Bench whereby he allowed the writ petition filed by

respondent Nos. 1 and 2 and granted their prayer for striking off the additional

written statement filed by the appellants after their impleadment as legal

representatives of defendant No.2 – Abdul Razak.
2
3. Respondent Nos. 1 and 2 filed suit in the Court of Civil Judge (Senior

Division), Panaji (hereinafter described as `the trial Court’) for declaring them as

lawful tenants of suit premises and also for restraining the defendants – Suresh

D. Naik (respondent No.3 herein) and Abdul Razak, who died during the

pendency of the suit and is being represented by his legal representatives

(appellants herein) to remove the lock allegedly put by respondent No.3 on the

suit premises along with materials dumped there. An alternative prayer made by

respondent Nos. 1 and 2 was for recovery of possession of suit premises in case

it was held that they had already been dispossessed. The substance of the case

set up by respondent Nos. 1 and 2 before the trial Court is that the suit premises

were let out to their predecessor Shri Rajaram D. Wagle in 1951 by one Jussab

Abdul Karim at a monthly rent of Rs.15/- which was subsequently increased to

Rs.25/-; that the owner-cum-landlord sold the premises to Abdul Kadar Haji

Jaffar (grandfather of appellant Nos.2, 3, 4 and 6); that Rajaram D. Wagle died

on 29.4.1981 and after his death they have been using the suit premises for

parking their cars; that on 5.1.1992, respondent No.3 broke open the lock of the

suit premises and dumped his goods i.e., boxes of liquor bottles, but the same

were removed by the police on a complaint made by respondent No.1 in that

regard; that on 8.1.1992, respondent No. 3 again broke open the lock and

forcibly occupied the suit premises and this time the police did not act on the

complaint made by them.
3
4. In his written statement, respondent No.3 not only denied the averments

contained in the plaint that he had illegally taken possession of the suit premises

after breaking open the locks put by respondent Nos. 1 and 2, but also pleaded

that after being forced to leave Kuwait in the wake of war, he came to India and

is doing business of distribution of liquor in the suit premises on the basis of

permission accorded by defendant No.2 – Abdul Razak, who was a family friend.

Respondent No.3 further pleaded that the competent authority granted him

excise licence after being satisfied that the suit premises were suitable for doing

business in liquor.
5. Abdul Razak (predecessor of the appellants) filed a separate written

statement. He largely denied the averments contained in the plaint and pleaded

that much before his death, Shri Rajaram D. Wagle had voluntarily surrendered

the suit premises and thereafter, respondent No.3 was allowed to occupy the

same for conducting business of distribution of liquor.
6. Abdul Razak died during the pendency of the suit. Thereupon,

respondent Nos. 1 and 2 filed an application for impleading his widow (appellant

No.1), son and three daughters (appellant Nos. 2, 3 4 and 6) and two son-in-

laws (appellant Nos. 5 and 7) in place of the deceased. Appellant Nos. 3, 4 and

6 objected to the impleadment of the son-in-laws by stating that they are non-

Goans and are not governed by personal law relating to properties in Goa. They
4
also objected to the impleadment of appellant Nos. 1 and 3 i.e., the widow and

son of the deceased on the ground that the suit premises had been allotted to

them in the inventory proceedings.
7. By order dated 10.12.2003, the learned trial Court overruled all the

objections raised by appellant Nos. 3, 4 and 6 and allowed the application of

respondent Nos. 1 and 2 by observing that joining of the widow, son and son-in-

laws of the deceased will not prejudice the daughters and they will be entitled to

take defence suitable to their plea.
8. In furtherance of the observation made by the trial Court in the

aforementioned order, the appellants filed additional written statement dated

3.3.2004, the sum and substance of which is that in the inventory proceedings

No.80/1989/A held in the Court of Civil Judge (Senior Division) at Panaji after the

death of Abdul Kadar Haji Jaffar and his wife, the suit property was allotted to

their grand-daughters (appellant Nos.3, 4 and 6) because other heirs did not

object to this. The appellants pleaded that in the meeting held on 10.4.1990,

members of the Family Council unanimously agreed for allotment of the

properties and this was approved by the Court vide order dated 26.9.1990. A

reference was also made to Special Civil Suit No. 89/99/B filed by appellant Nos.

3, 4 and 6 in the trial Court for grant of permanent injunction on the ground that

respondent Nos. 1 and 2 had filed Execution Application No.15/98/A for being
5
put in possession of the suit premises in execution of order dated 17.4.1997

passed in an application for temporary and mandatory injunction. According to

the appellants, the trial Court allowed the execution application and the appeal

and special leave petition filed by them were dismissed by the High Court and

this Court respectively. In the additional written statement, it was also averred

that son-in-laws of late Abdul Razak have no right, title or interest in the suit

property and, therefore, they cannot be treated as his legal representatives. The

impleadment of appellant No.2 was also questioned on the premise that he has

no right in the suit property.

9. After filing of the additional written statement, the trial Court framed the

following additional issues:

1. Whether the plaintiffs prove that defendants illegally
damaged and destroyed the two ramps existing adjacent to the
entrance of the suit premises?

2. Whether the plaintiffs prove that the suit filed by them for
declaration of tenancy right is maintainable for want of the owners
of the suit premises?

3. Whether the plaintiffs prove that Sajeeda Razak, Matheen I
Saint, Mohammad Arif Razak Ajaz Ahmed are legal representatives
of deceased defendant No.2 impleaded in the suit as defendants
2(i), 2(ii), 2(v) and 2(vii) respectively.

What relief? What order?

10. Respondent Nos. 1 and 2 did not object to the taking on record of the
6
additional written statement filed by the appellants or framing of the additional

issues and led evidence, the recording of which was completed during 2006.

Thereafter, the appellants produced their evidence. When the case was fixed for

cross-examination of appellant No.3, who is one of the witnesses cited by the

appellants, respondent Nos. 1 and 2 filed application dated 9.10.2007 for striking

off the additional written statement by asserting that the legal representatives of

the deceased defendant No.2 do not have right under the Code of Civil

Procedure (CPC) to file such written statement and, in any case, they cannot be

allowed to raise new plea about their title to the suit premises. Respondent Nos.

1 and 2 further pleaded that the additional written statement is liable to be

struck off because before filing the same, the appellants did not seek leave of

the court. In their reply, the appellants pleaded that the additional written

statement was filed with a view to bring on record the facts relating to the

inventory proceedings and the same cannot be struck off because the applicants

have failed to make out a case for exercise of power by the court under Order VI

Rule 16 CPC.

11. The trial Court dismissed the application of respondent Nos. 1 and 2 by

observing that leave of the Court will be presumed to have been granted

because the additional written statement was filed on 3.3.2004 and respondent

Nos. 1 and 2 had not objected to the same. As regards their plea that new or

inconsistent case was sought to be set up by the appellants, the trial Court
7
observed that this point can be considered at the time of deciding the case on

merits. The trial Court then referred to Order VI Rule 16 and held that

respondent Nos. 1 and 2 have not been able to make out a case for striking off

the additional written statement.

12. Respondent Nos. 1 and 2 challenged the order of the trial Court in W.P.

No. 58/2008. By the impugned order, the learned Single Judge allowed the writ

petition and held that the legal representatives of deceased defendant No.2

could have taken a plea which was appropriate to their character as legal

representatives, but they were not entitled to take a plea derogatory to the plea

already taken. The learned Single Judge further held that the trial Court was not

justified in dismissing the application on the ground of delay, which could have

been compensated by imposing cost.

13. We have heard learned counsel for the parties. Three questions which

merit consideration by this Court are –

(i) What is the effect of delay in filing the application by respondent Nos. 1
and 2 for striking off the additional written statement?
(ii) Whether the High Court could pass an order for striking off the additional
written statement despite the fact that respondent Nos. 1 and 2 failed to
make out a case for exercise of power by the court under Order VI Rule
16 CPC?
(iii) Whether the High Court was justified in setting aside the order of the trial
Court without being satisfied that the same was vitiated by an error of
8
jurisdiction or an error of law apparent on the face of the record and that
such error resulted in substantial failure of justice?

Re: (i):

14. Undisputedly, the additional written statement was filed on 3.3.2004 and

the same was taken on record without any objection from respondent Nos. 1 and

2, who did not even seek leave of the court to file further pleadings in the light

of the additional written statement. Although, the parties have not furnished

details of the proceedings of the case for next about two years, this much is

clear that respondent Nos.1 and 2 led evidence in support of their case and

completed the same in 2006. In the absence of any contrary evidence, it can be

reasonably and legitimately presumed that respondent Nos. 1 and 2 must have

produced their evidence keeping in view the pleadings contained in the

additional written statement. They filed application for striking out the additional

written statement after a long time gap of three years and six months without

explaining as to why they did not object to the taking on record of the additional

written statement and framing of additional issues in 2004 and why they chose

to lead evidence knowing fully well that after their impleadment as legal

representatives of Abdul Razak, appellant Nos. 3, 4 and 6 had pleaded that they

had become owners of the property by virtue of the orders passed in the

inventory proceedings. The learned Single Judge casually brushed aside and

rejected the plea of the appellants that the application filed by respondent Nos. 1

and 2 for striking off the additional written statement was highly belated and no
9
explanation worth the name had been offered for the same by observing that the

trial Court could have compensated them by imposing cost. In our view, the

learned Single Judge should have seriously examined the issue of delay in the

backdrop of the facts that respondent Nos. 1 and 2 did not object to the taking

on record the additional written statement or framing of additional issues and led

their evidence and further that the application was filed after almost one year of

completion of their evidence. The observation made by the learned Single Judge

that the proceedings of the suit will be delayed if the legal representatives of the

deceased defendant are allowed to take the plea based on their title is neither

here nor there. It is true that the suit filed by respondent Nos. 1 and 2 is

pending for last about 17 years, but there is nothing on record to show that the

appellants or their predecessors are responsible for the delay. The death of

Abdul Razak was not a predictable event, the happening of which could be

averted by the parties or the court. In any case, the appellants cannot be

blamed for the delay, if any, in the trial of the case. As a matter of fact,

respondent Nos. 1 and 2 have delayed the proceedings for over two years by

filing frivolous application for striking off the additional written statement which,

as mentioned above, was taken on record in March, 2004.

Re: (ii):

15. Order VI Rule 16 CPC which empowers the Court to strike out the

pleadings reads thus:
10
“Striking out pleadings. – The Court may at any stage of the
proceedings order to be struck out or amended any matter in any
pleading–
(a) which may be unnecessary, scandalous, frivolous or vexatious,
or
(b) which may tend to prejudice, embarrass or delay the fair trial of
the suit, or
(c) which is otherwise an abuse of the process of the court.”
16. A reading of the plain language of the above reproduced provisions makes

it clear that the court’s power to strike out any pleading at any stage of the

proceedings can be exercised in either of the three eventualities i.e., where the

pleadings are considered by the court unnecessary, scandalous, frivolous or

vexatious; or where the court is satisfied that the pleadings tend to prejudice,

embarrass or delay the fair trial of the suit or which is otherwise considered as

an abuse of the court.

17. Normally, a court cannot direct or dictate the parties as to what should be

their pleading and how they should prepare their pleadings. If the parties do not

violate any statutory provision, they have the freedom to make appropriate

averments and raise arguable issues. The court can strike off the pleadings only

if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious

or tend to prejudice, embarrass or delay the fair trial of the suit or the court is

satisfied that suit is an abuse of the process of the court. Since the striking off

pleadings has serious adverse impact on the rights of the concerned party, the

power to do so has to be exercised with great care and circumspection. In
11
Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J. Observed:

“It seems to me that the rule that the Court is not to dictate to
parties how they should frame their case, is one that ought always
to be preserved sacred. But that rule is, of course, subject to this
modification and limitation, that the parties must not offend against
the rules of pleading which have been laid down by the law; and if
a party introduces a pleading which is unnecessary, and it tends to
prejudice, embarrass and delay the trial of the action, it then
becomes a pleading which is beyond his right. It is a recognized
principle that a defendant may claim ex debito justitiae to have the
plaintiff’s claim presented in an intelligible form, so that he may not
be embarrassed in meeting it; and the Court ought to be strict even
to severity in taking care to prevent pleadings from degenerating
into the old oppressive pleadings of the Court of Chancery.”

18. The above reproduced observations have been quoted with approval in

Sathi Vijay Kumar v. Tota Singh and others (2006) 13 SCC 353. In that

case, the order passed by the High Court deleting paragraphs 11, 12 and 13(a)

from the election petition filed by the appellant was questioned before this Court

on the ground that the case does not fall within the ambit of Order VI Rule 16.

This Court first held that the provisions of Order VI Rule 16 CPC are applicable to

election petitions. The Court then referred to the earlier judgments in Roop Lal

Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487, K.K. Modi v. K.N. Modi

(1998) 3 SCC 573, Union Bank of India v. Naresh Kumar (1996) 6 SCC 660

and held that the power to strike out pleading is extraordinary in nature and

must be exercised by the Court sparingly and with extreme care, caution and

circumspection.
12
19. In this case, the learned trial Court did make a reference to the provisions

of Order VI Rule 16 and held that the application made by the plaintiffs

(respondent Nos. 1 and 2 herein) does not fall in either clauses of Rule 16. The

learned Single Judge of the High Court did not even bother to notice Order VI

Rule 16 what to say of considering its applicability to the pleadings contained in

the additional written statement and granted the prayer of respondent Nos. 1

and 2 by assuming that the plea raised by the appellants was inconsistent with

the defence set up by their predecessor-in-interest. In our opinion, the learned

Single Judge did not have the jurisdiction to direct striking off the additional

written statement without being satisfied that respondent Nos. 1 and 2 were able

to make out a case for exercise of power by the court under either of three

clauses of Order VI Rule 16 CPC.

Re: (iii) :

20. Although, from the record produced before this Court it is not clear

whether respondent Nos. 1 and 2 had filed writ petition under Article 226 of the

Constitution of India or they had invoked supervisory jurisdiction of the High

Court under Article 227 of the Constitution, but a reading of the impugned order

does not leave any manner of doubt that while granting relief to respondent Nos.

1 and 2, the learned Single Judge did not keep in mind the guiding principles laid

down by this Court for exercise of power under Articles 226 or 227 of the

Constitution. It seems to us that the learned Single Judge decided the matter by
13
assuming that he was hearing an appeal against the order of the trial Court. If

this was not so, the learned Single Judge was duty bound to first consider

whether he was called upon to exercise power under Article 226 of the

Constitution of India or under Article 227 thereof. If respondent Nos. 1 and 2

had invoked the High Court’s jurisdiction under Article 226, then the learned

Single Judge ought to have considered whether the trial Court committed a

jurisdictional error by refusing to strike off the additional written statement filed

by the appellants or it was a case of failure on the part of the trial Court to

exercise the power vested in it under Order VI Rule 16 CPC or the order under

challenge was vitiated by an error of law apparent on the face of the record or

there was violation of the rules of natural justice. In either case, the learned

Single Judge was also required to consider whether there has been substantial

failure of justice or manifest injustice has been caused to respondent Nos. 1 and

2 on account of the trial Court’s refusal to strike off the additional written

statement. These are the parameters laid down by this Court in Syed Yakoob

v. K.S. Radhakrishnan AIR 1964 SC 477. If the petition filed by respondent

Nos. 1 and 2 was under Article 227 of the Constitution of India, then the learned

Single Judge should have taken note of the often quoted judgment in Surya

Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, in which a two-Judge Bench,

after threadbare analysis of Articles 226 or 227 of the Constitution and

considering large number of judicial precedents on the subject, recorded the

following conclusions:
14

“(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in
Section 115 of the Code of Civil Procedure cannot and does not
affect in any manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the
High Court, against which remedy of revision has been excluded by
CPC Amendment Act 46 of 1999 are nevertheless open to challenge
in, and continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction i.e. when a subordinate court
is found to have acted (i) without jurisdiction — by assuming
jurisdiction where there exists none, or (ii) in excess of its
jurisdiction — by overstepping or crossing the limits of jurisdiction,
or (iii) acting in flagrant disregard of law or the rules of procedure
or acting in violation of principles of natural justice where there is
no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds of
their jurisdiction. When a subordinate court has assumed a
jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available is
being exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the
High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied: (i) the error is
manifest and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross failure of justice
has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate
court has chosen to take one view, the error cannot be called gross
or patent.
15

(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 thereagainst 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.

(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not convert itself into a court of appeal and indulge
in reappreciation or evaluation of evidence or correct errors in
drawing inferences or correct errors of mere formal or technical
character.

(9) In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction
exercised by the High Courts in India unlike English courts has
almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari, the High
Court may annul or set aside the act, order or proceedings of the
subordinate courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High Court may
not only give suitable directions so as to guide the subordinate
court as to the manner in which it would act or proceed thereafter
or afresh, the High Court may in appropriate cases itself make an
order in supersession or substitution of the order of the
subordinate court as the court should have made in the facts and
circumstances of the case.”

21. We regretfully note that while deciding the writ petition filed by
16
respondent Nos. 1 and 2, the learned Single Judge did not keep in mind the

principles laid down by this Court in the aforementioned two judgments and

decided the same as if he was exercising appellate jurisdiction of the High Court.

There have been several other instances in which different High Courts have

passed orders in exercise of power under Articles 226 or 227 of the Constitution

of India disregarding the limitations identified and indicated by this Court in

several decisions on the exercise of that power. We hope and trust that in

future the High Courts would keep in view the limitations of certiorari

jurisdiction/supervisory jurisdiction and refrain from deciding the writ petitions

filed under Article 226 or petitions/applications filed under Article 227 of the

Constitution as if they are adjudicating appeals filed against the orders of the

lower courts or other judicial/quasi judicial bodies/authorities.

22. Before concluding, we deem it appropriate to consider the argument of

the learned counsel for respondent Nos. 1 and 2 that the pleadings contained in

the additional written statement filed by the appellants were inconsistent with

and beyond the scope of the defence set up by Abdul Razak in the original

written statement and the trial Court was duty bound to discard the same in view

of the provision contained in Order 22 Rule 4 CPC and the judgments of this

Court in J.C. Chatterjee v. Sri Kishan (1972) 2 SCC 461, Bal Kishan v.

Om Parkash (1986) 4 SCC 155 and Vidyawati v. Man Mohan (1995)

5 SCC 431. In our opinion, the argument of the learned counsel is
17
meritless and deserves to be rejected. In the plaint filed by them, respondent

Nos. 1 and 2 did not make a mention of the inventory proceedings held after the

death of Abdul Kadar Hazi Jaffar and his wife and order dated 26.9.1990 passed

by the trial Court. In his written statement, Abdul Razak pleaded that before his

death, the tenant Shri Rajaram D. Wagle had surrendered possession of the

premises to him and that the plaintiffs had nothing to do with the suit premises.

He further pleaded that the suit premises were given to defendant No.2 for

conducting business of distribution of liquor. There is nothing in the written

statement of Abdul Razak from which it can be inferred that he has claimed

ownership over the suit property. After they were brought on record as legal

representatives of late Abdul Razak, the appellants filed additional written

statement incorporating therein the plea that the suit property had become

subject matter of inventory proceedings No.80/89/A and the same was allotted

to the daughters of Abdul Razak i.e. appellant Nos.3, 4 and 6. The appellants

also pleaded that in the meeting of the Family Council held on 10.4.1990, a

unanimous decision was taken for allotment of the properties and the same was

approved by the trial Court vide order dated 26.9.1990. According to the

appellants, Abdul Razak was looking after the suit property because at the time

of death of his parents, appellant Nos. 3, 4 and 6 were minor. Therefore, it

cannot be said that the plea raised by the appellants is inconsistent with the

averments contained in the original written statement by Abdul Razak. Order 22

Rule 4(1) and (2) CPC on which reliance has been placed
18
by learned counsel for respondent Nos. 1 and 2 reads as under:

“4. Procedure in case of death of one of several defendants
or of sole defendant.–(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 right 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.”
23. In J.C. Chatterjee’s case, this Court interpreted the above reproduced

provision and held:

Under sub-clause (ii) of Rule 4 of Order 22 of the Civil Procedure
Code any person so made a party as a legal representative of the
deceased, respondent was entitled to make any defence
appropriate to his character as legal representative of the deceased
respondent. In other words, the heirs and the legal representatives
could urge all contentions which the deceased could have urged
except only those which were personal to the deceased. Indeed
this does not prevent the legal representatives from setting up also
their own independent title, in which case there could be no
objection to the court impleading them not merely as the legal
representatives of the deceased but also in their personal capacity
avoiding thereby a separate suit for a decision on the independent
title.
24. In Bal Kishan’s case, the proposition laid down in J.C. Chatterjee’s

case was reiterated, but its width was limited by observing that the same would

apply only to those cases where the Court hearing the case has jurisdiction to try
19
the issues relating to independent title also. The facts of Bal Kishan’s case

were that respondent No. 1 therein filed a petition for eviction of the tenant by

alleging that the latter had sublet the premises without his consent. During the

pendency of the petition, the tenant Musadi Lal died. Thereupon, the appellant

Bal Kishan filed an application for being brought on record as legal

representative of the deceased. The Rent Controller allowed the application.

Thereafter, the appellant filed additional written statement asserting therein that

the premises in question being residential and commercial, the legal heir of the

tenant could not be treated as a tenant as defined under Section 2(h) of the

Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of

such legal heir of the tenant would be that of a trespasser. He accordingly

prayed for dismissal of the eviction petition. The Rent Controller rejected the

appellant’s plea and allowed the eviction petition by holding that Musadi Lal had

sublet the premises to Med Ram without his consent. The appeal and revision

filed by the appellant were dismissed by the Appellate Authority and the High

Court respectively. Before this Court, the appellant relied upon the ratio of J.C.

Chatterjee’s case and argued that he was entitled to raise an additional plea

that the eviction petition was not maintainable. While rejecting this plea, this

Court held:
But in the instant case the appellant cannot claim the benefit of the
above decision for two reasons. First, the appellant had not been
brought on record as a respondent in the eviction petition in his
personal capacity but had been brought on record only as the legal
representative of Musadi Lal. Secondly, in the circumstances of this
20
case, even if a prayer had been made to bring the appellant on
record in his personal capacity, the Rent Controller could not have
allowed the application and permitted him to raise the plea of
independent title because such a plea would oust the jurisdiction of
the Rent Controller to try the case itself. The observations made in
the Jagdish Chander Chatterjee case have to be confined to only
those cases where the court hearing the case has jurisdiction to try
the issues relating to independent title also. The Rent Controller,
who had no jurisdiction to pass the decree for possession against a
trespasser could not have, therefore, impleaded the appellant as a
respondent to the petition for eviction in his independent capacity.

(emphasis supplied)

25. In Vidyawati’s case, this Court considered the question whether a

person impleaded as a legal representative of the deceased defendant can

independently claim title to and interest in the property under a will. It was

contended by the appellant that claim of the original defendant and that of the

legal representative are founded on the will executed by Champawati and the

courts below were not right in refusing to permit her to file additional written

statement. While approving the view taken by the courts below, this Court

observed “whether the petitioner has independent right, title and interest de hors

the claim of the first defendant is a matter to be gone into at a later proceeding.

It is true that when the petitioner was impleaded as a party-defendant, all rights

under Order XXII Rule 4(2), and defences available to the deceased defendant

became available to her. In addition, if the petitioner had any independent right,

title or interest in the property, then she had to get herself impleaded in the suit

as a party-defendant. Thereafter, she could resist the claim made by the
21
plaintiff or challenge the decree that may be passed in the suit. For taking this

view, the Court relied upon the judgments in J.C. Chatterjee’s case and Bal

Kishan’s case.

26. The judgments of Bal Kishan’s case and Vidyawati’s case are clearly

distinguishable. In the first case, the earlier judgment in J.C. Chatterjee’s

case, which substantially supports the appellants was distinguished on the

ground that the plea raised by the impleaded legal representative of the tenant

was inconsistent with his defence and, if accepted, the same would result in

ouster of the jurisdiction of the Rent Controller. In the second case also, the

Court found that the plea raised by the appellant, who was impleaded as legal

representative of the defendant that she had independent title under the will

executed by Champawati was not in consonance with the plea taken by the

original defendant. However, as discussed in the earlier part of the judgment,

the claim made by the appellants is in no way inconsistent with or derogatory to

the defence set up by Abdul Razak. In any case, once the additional written

statement filed by the appellants was taken on record without any objection by

respondent Nos. 1 and 2, who also led their evidence keeping in view the

pleadings of the additional written statement, the High Court was not at all

justified in allowing the application filed for striking off the additional written

statement and that too without even adverting to Order VI Rule 16 CPC and

considering whether respondent Nos. 1 and 2 were able to make out a case for
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exercise of power by the court under that provision.

27. In the result, the appeal is allowed. The impugned order of the High

Court is set aside and the one passed by the trial Court is restored. Respondent

Nos. 1 and 2 shall pay cost of Rs.25,000/- to the appellants for burdening them

with unnecessary litigation.
………………………………….J.
[G.S. Singhvi]

………………………………..J.
[Asok Kumar Ganguly]

New Delhi
January 07, 2010

Judgement