(1) WP 8446.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8446 OF 2010 Smt. Shahshikala Shamsundar Khedkar Petitioner VERSUS Satish Soma Bhole and others Respondents ..... Mr. R.R. Mantri, Advocate for the Petitioner. Mr. A.B. Kale, Advocate for the Respondents. ..... CORAM : V.R. KINGAONKAR, J. DATED : 7TH JANUARY, 2011 ORAL ORDER:- 1. Heard learned Advocate for the parties. 2. The petitioner is daughter of deceased Taramati. Both of them were added as defendants in the Suit. The petitioner failed to appear before the trial Court in the said Suit (Special Civil Suit 247 of 1999) though she was arrayed as defendant no.3. She lateron filed an application for setting aside the exparte order. The application was dismissed. The order was confirmed by this Court. Needless to say the petitioner could not file her written statement in the trial Court, in her individual capacity. Her mother i.e. Taramati died on 31.5.2007. (2) WP 8446.2010 It was thereafter that the petitioner was added as the legal representative of her deceased-mother. She filed pursis alongwith written statement with the contention that she was filing the written statement as legal representative of the deceased mother i.e. Taramati. The trial Court rejected the request to allow the written statement to be taken on record. It is against such order that the present Writ Petition is filed. 3. The question involved is as to whether the petitioner can be permitted to file any written statement as legal representative of deceased Taramati, when the deceased herself had not filed any written statement and moreover, when the petitioner herself, in her individual capacity was not allowed to place on record her written statement? Mr. Mantri seeks to rely on certain observations in "Sumtibai and others Vs. Paras Finance Company Ltd. AIR 2007 SC 3166". The relevant observations are reproduced as follows:- "15. Also, merely because some applications have been rejected earlier it does not mean that the legal representatives of late (3) WP 8446.2010 Kapoor Chand should not be allowed to file an additional written statement. In fact, no useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice." He also referred to observations in "Vidyawati V. Man Mohan and ors. AIR 1995 SC 1653". 4. Considering the scope of Order 22 Rule 4(2) of the C.P. Code, and the relevant observations of the Apex Court, it is amply clear that the legal representative cannot take any stand contrary to the stand of the deceased if the written statement is filed by the deceased nor he/she can expand the scope of the pleas available to the deceased. The deceased i.e. Taramati had not filed any written statement and, therefore, there were no pleadings before the trial Court on her behalf. So, unless the exparte order rendered against Taramati is set at naught and is de-clamped by the legal means, there was no written statement permissible on her behalf. The petitioner, at the most, will be entitled to move the (4) WP 8446.2010 trial Court to set aside the exparte order rendered against deceased Taramati if good and sufficient reasons are available and demonstrated for non-filing of the written statement and thereafter, may put forth the defences which were available to Taramati as her legal representative. 5. The fact situation in the present case is quite clear. There was no written statement filed by deceased Taramati and, therefore, the petitioner could not have filed any written statement as if it was the written statement of Taramati or her written statement as legal representative of deceased Taramati. The observations in "Sumtibai and others" (supra) are also of not much help to the petitioner. In the given case, the additional written statement was permitted by the Apex Court, in order to elaborate the stand which was already taken by the deceased, by the legal representative. That is not the fact situation in the present case. In this view of the matter, the Petition is without merits and as such is dismissed. Sd/- [V. R. KINGAONKAR, J.] arp