1991 (8) TMI 342

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....uit were being heard and that too when Mr. B. D. Sharma representing the defendants referred to the pleas taken therein. It was time for Mr. N. P. Shankardass, the learned counsel for the plaintiff, to register his protest. His objection was that the legal representatives had at no time sought the leave of the Court, nor the court had granted any, to file additional written statement and consequently the filing of the written statement 'surreptitiously' In the Registry would not suffice. He, in support relied upon 0. 8, R. 9 of the Code of Civil Procedure. Needless to say, Mr. Sharma found the objection unpalatable. As per him 0. 8, R. 9 would be inapplicable. He drew my attention to 0. 22, R. 4 and argued that under the said provis....

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....ten statement or where the defendant having not appeared previously and having been proceeded against ex parts, joins the proceedings and seeks to file written statement. The tenor of this provision shows that a party seeking to file additional written statement has necessarily to show to the court the circumstances as to why he failed to raise the pleas in the original written statement. Panchapakesan, J. tells us in Nanjan v. Selai, AIR 1958 Madras 383 as to how the matter is proceeded with under this provision. He says (Para 2): "If the party wants to file an additional written statement, he has to file a petition stating the reason why he failed to say these things in the original written statement, and what excuse is for allowin....

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....ve of the Court which the Court, in its discretion, may or may not grant, However, and this to my mind is not less significant, a legal representative can and may, as A in , raise any defense which is appropriate to -his character as legal representative of the deceased defendant. And, if he chooses to raise any such defense, he being "entitled". (See J. C. Chatterjee v. S. K. Tandon) to do so. the Court has no discretion to stop or debar him from so doing. 9. It is for the reasons recorded above, that I feel that 0. 8, R. 9 has no application. However, a judgment from Calcutta High Court needs to be noticed. Though it was not cited at the bar, as it appears to go against the view taken by me, it needs to be commented upon. It is....