# Smt. Prabha Devi & Ors v. Brijeswar Singh &Ors - **Citation:** (2019) 1 ILRA 1332 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-07-26 - **Case number:** Matters Under Article 227 No 5629 of 2019 - **Bench:** Manoj Kumar Gupta - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prabha-devi-ors-v-brijeswar-singh-ors-44407 - **Pages:** 3 ## Headnote A. Code of Civil Procedure 1908 :Order 22 rule 4 (2) and Order 8 Rule 9. A counter claim could be filed normally Under Order 8 rule 9 C.P.C. but that has to be with the Leave of the Court. Which granting such leave, the Court will also have regard to the conditions stipulated Under Order 6 rule 17 C.P.C. as a Counter claim In case of legal representative of deceased defendant, the further rider Under Order 22 rule 4(2) C.P.C. is that he can only take defence appropriate to his charactor as legal representative of the deceased party. He cannot set up a different case. (Para 5,6,7,8) Writ Petition dismissed. (E-2) ## Text 1332 INDIAN LAW REPORTS ALLAHABAD SERIES filing of the written statement but the petitioners have succeeded in delaying the proceedings of the suit on basis of the said plea for considerable period. They filed review application against the order of the trial court, which had already been upheld in revision. Again, on basis of review application, they succeeded in getting the proceedings delayed for almost fifteen years, thus defeating the very object with which time limit is provided under Order 8, Rule 1 C.P.C. Such conduct on part of a litigant is highly deplorable. 9. Having regard to the facts of the case, the instant petition is dismissed with a cost of Rs. 10,000/- ----------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 26.07.2019 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. Matters Under Article 227 No 5629 of 2019 Smt. Prabha Devi & Ors. ...Petitioners Versus Brijeswar Singh &Ors. ...Respondents Counsel for the Petitioners: Sri Surta Bhan Dubey, Sri Ram Sajiwan Mishra. Counsel for the Respondents: --- A. Code of Civil Procedure 1908 :Order 22 rule 4 (2) and Order 8 Rule 9. A counter claim could be filed normally Under Order 8 rule 9 C.P.C. but that has to be with the Leave of the Court. Which granting such leave, the Court will also have regard to the conditions stipulated Under Order 6 rule 17 C.P.C. as a Counter claim In case of legal representative of deceased defendant, the further rider Under Order 22 rule 4(2) C.P.C. is that he can only take defence appropriate to his charactor as legal representative of the deceased party. He cannot set up a different case. (Para 5,6,7,8) Writ Petition dismissed. (E-2) (Delivered by Hon'ble Manoj Kumar Gupta J.) 1. The instant petition is directed against the order dated 1.5.2019 passed by Additional District Judge, Court No.7, Varanasi in Civil Revision No.24 of 2018. The revision has been allowed and the order of the trial court dated 10.1.2018, permitting the petitioners to file counter claim along with additional written statement has been set aside. The reivisional court has directed the trial court to decide the application 166-C afresh. 2. The husband of petitioner no.1 and father of petitioners no.2 to 4 was defendant no.4 in Original Suit No. 276 of 2008. It is not in dispute that he filed a written statement on 6.4.2009. He died on 8.4.2013 during pendency of the suit. The petitioners were substituted in his place by order dated 11.4.2014. After their substitution, the petitioners filed application 166-C for permission to file additional written statement alongwith counter claim. The trial court allowed the application for taking on record additional written statement along with counter claim by order dated 10.1.2018 observing that the petitioners, who came on record by way of substitution, did not have the opportunity to file counter claim earlier, therefore, the application deserves to be allowed. 3. The revisional court, not satisfied with the view taken by the trial court, has 1 All. Smt. Prabha Devi & Ors. Vs. Brijeshwar Singh & Ors. 1333 set aside the order of the trial court. It has observed that the counter claim was not filed by the father of the petitioners along with the written statement filed by him. The revisional court has also noted that there had been a delay of more than five years in filing counter claim without there being any explanation in that regard. It has also observed that while filing additional written statement, the legal heirs do not automatically get right to file counter claim. The petitioners have sought to set up an entirely different case, withdrawn various admissions and have claimed relief which is inconsistent with the case set up in the written statement filed by the original defendant, which is not permissible. 4. Counsel for the petitioners submitted that the petitioners were compelled to file counter claim because of change of circumstances. It is for the said reason that they have to take a different stand than what was taken by their predecessor. 5. Indisputably, the predecessor of the petitioners had filed a written statement without setting up any counter claim therein. The petitioners, after the death of their predecessor, have stepped into his shoes. They got the right to file written statement under Order 22 Rule 4 (2) CPC. They could also have filed additional written statement after obtaining leave from the court under Order 8 Rule 9 C.P.C. However, it is well settled that the legal heirs, while filing additional written statement, cannot go beyond the case set up in the original written statement by the person in whose place they have been substituted. 6. In Vidyawati Vs. Man Mohan and others, AIR 1995 SC 1653, in a suit for possession of suit property after the death of one of the defendants (Brij Mohan Kapoor), his legal representative sought to file additional written statement claiming title and interest in the suit property under a Will executed by one Smt. Champawati. The trial court did not permit the same. So did the revisional court and the High Court. The issue that arose for consideration before the Supreme Court was whether the legal representative of the deceased defendant had to confine herself to the defence appropriate to her character as legal representative or she could raise a plea personal to her. In the above context, the Supreme Court has observed as under:- 4. This Court in Bal Kishan vs. Om Parkash &Anr. AIR 1986 SC 1952 has said thus: "The sub-rule (2) of Rule of Order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent." 6. This being the position in law, the view of the court below is perfectly legal. It is open the petitioner to implead herself in her independent capacity under Order 1 Rule 10 or retain the right to file independent suit asserting her own right. We do not find any error of jurisdiction or material irregularity committed in the exercise of jurisdiction by the court below warranting our interference. The S.L.P. is, accordingly, dismissed." 7. Normally, a counter claim has to be filed alongwith the written statement. It could also be introduced in the written statement by seeking amendment but in 1334 INDIAN LAW REPORTS ALLAHABAD SERIES which event, the conditions laid down under Order 6 Rule 17 CPC have to be fulfilled. A counter claim, in exceptional circumstances, could be filed under Order 8 Rule 9 CPC but that has to be with the leave of the court. While granting such leave, the court will also have regard to the conditions stipulated under Order 6 Rule 17 CPC as a Counter claim, as noted above, should normally be part of written statement. In case of legal representative of deceased defendant, the further rider under Order 22 Rule 4 (2) CPC is that he can only take defence appropriate to his character as legal representative of the deceased party. He cannot set up a different case or take plea which is inconsistent with the one raised by the original defendant, much less any right to file counter claim with his written statement. 8. The view taken by the trial court that because the petitioners were not party to the suit earlier and therefore, after their substitution, they got opportunity to file counter claim for the first time with their additional written statement and therefore, it has to be permitted, is based on complete misunderstanding of the scheme of the Code of Civil Procedure. The revisional court has rightly remitted the matter back to the trial court to consider whether there exists any justifiable ground on record to warrant accepting counter claim at such a delayed stage. The trial court would also be required to ascertain whether the counter claim is in respect of cause of action accruing before the original defendant had delivered his defence. It shall also have to consider as to whether permitting the petitioners to raise counter claim in the instant suit would embarrass the trial thereof at this stage or if it should exercise its power under Order 8 Rule 6-C so as to direct the petitioners to raise their claim by way of a separate suit. 9. This Court finds no illegality in the impugned order. Moreover, it is only a remand order whereunder the trial court will now decide the application afresh having regard to the observations made by the revisional court. 10. No ground is made out to interfere with the impugned order in exercise of supervisory power under Article 227 of the Constitution. 11. The petition is accordingly dismissed. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 26.08.2019 BEFORE THE HON'BLE VED PRAKASH VAISH, J. THE HON'BLE MOHD. FAIZ ALAM KHAN, J. U/S 378 Cr.P.C. No. 105 of 2019 State of U.P. ...Applicant Versus Pushpa &Anr. ...Opp. Parties Counsel for the Applicant: Govt. Advocate Counsel for the Opp. Parties: ----- A. The parameters for Grant Leave to Appeal under Section 378 (3) Cr.P.C. the Court should keep in mind remains no more 'res integra'. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. B. The general principles are appellate court is having full power to reconsider the evidence upon which the order/ judgment of acquittal has been based and the accused cannot claim each and every doubt to get the benefit.