Gujarat High Court
Pradyumansinh vs Shilaba on 28 January, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/564/2010 2/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 564 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRADYUMANSINH
SURENDRASINH RANA - Petitioner(s)
Versus
SHILABA
MADHAVSINHJI SODHA - Respondent(s)
=========================================================
Appearance
:
MR
MRUGEN K PUROHIT for
Petitioner(s) : 1,
MR DIPEN K DAVE for Respondent(s) : 1,
MR
LAXMANSINH M ZALA for Respondent(s) :
1,
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 28/01/2010
ORAL
JUDGMENT
Leave to amend memorandum of the petition, is granted.
RULE.
Mr. Dipen K. Dave, learned Counsel, waives service of notice of rule on behalf of the respondent.
1.0 This petition has been preferred invoking the provisions of Articles 226 and 227 of the Constitution of India, inter alia with a prayer to issue a writ of certiorari or any other appropriate writ or order, to quash and set aside the judgment and order dated 30.12.2009, passed below application at Exhibit-35 in Civil Miscellaneous Application No.74 of 2008, by the learned 2nd Additional Senior Civil Judge, Jamnagar.
2.0 The brief facts, relevant for the decision of the petition are that, the respondent(Original Applicant)filed the above-mentioned application for grant of probate in respect of immovable property, mentioned in Schedule-'A' to the application. The trial Court, by order dated 14.08.2008, ordered the issuance of a public notice, inviting objections to the said application. The petitioner filed objections to the said application vide Exhibit-22. Thereafter, the petitioner preferred an application at Exhibit-35, under the provisions of Order 1, Rule 10 of the Code of Civil Procedure ('the Code' for short), praying that he may be impleaded / transposed as a co-applicant in the application for obtaining probate, filed by the respondent, on the ground that he has an equal right, title and interest in the property in question. The respondent opposed the said application, by filing a reply thereto, vide Exhibit-36.
2.1 After hearing the parties, the trial Court rejected the application of the petitioner for impleading / transposing him as applicant No.2 in Civil Miscellaneous Application No. 74 of 2008. Being aggrieved by the impugned order dated 30th December, 2009, the petitioner has approached this Court, by filing the present petition.
3.0 Mr. Mrugen K. Purohit, learned Counsel for the petitioner has submitted that:
(i) The impugned order is contrary to the legal and factual position and, an error of law and jurisdiction has been committed by the trial Court, while passing the same.
(ii) It ought to have been considered by the trial Court that the petitioner has also made an alternative prayer for grant of probate in the joint names of the petitioner and the respondent, therefore, it would have been appropriate if the trial Court had allowed the application filed by him, for impleading / transposing the petitioner as applicant No.2.
(iii) The trial Court has lost sight of the averments made in the objections filed by the petitioner to the effect that, the petitioner has an equal right, title and interest in the property, in respect of which probate is being sought by the respondent, and rejection of the same will result in multiplicity of proceedings and, therefore, the impugned order being erroneous, may be quashed and set aside, and the petition allowed.
4.0 Opposing the prayers made in the petition, Mr. Dipen K. Dave, learned Counsel for the respondent has submitted that the impugned order has been passed in accordance with the relevant provisions of law, and is supported by clear and cogent reasons, which are totally in consonance with the legal and factual position. It is further submitted that the petitioner is already a party to the proceedings, being an objector, and in this view of the matter, there is no necessity to allow the application filed by him under the provisions of Order 1, Rule 10 of the Code. As the impugned order does not suffer from any error of law or jurisdiction, the petition may be dismissed.
5.0 I have heard learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order, and other documents on record.
5.1 It is an admitted fact that the petitioner has filed objections to the application for probate filed by the respondent, after the trial Court issued a public notice, inviting objections on 14.08.2008. The averments made in the petition, especially, those made in Paragraph-3.2 thereof, reveal that the interests of the petitioner and the respondent are divergent to each other and there is no common ground between them. The case of the respondent(Original Applicant) before the trial Court is that her sister, Dr. Kishorba Madhavsinhji Sodha, had executed a will on 17.04.2006 in her favour, in the presence of witnesses, whereas the case of the petitioner (Original Objector) is that the deceased Dr. Kishorba had good relations with his grand-father and had executed a will on 20.06.2002, in the name of the petitioner. The petitioner claims an equal right, title and interest in the property in question.
5.2 From the above it is amply clear that, there is a controversy between the petitioner(Original Objector) and the respondent(Original Applicant), regarding the grant of probate, in respect of the property in dispute. It cannot be lost sight of that, the petitioner is already a party to the proceedings, being an objector, and his objections have to be heard and decided, while deciding the application for probate. The provisions of Order 1, Rule 10 of the Code, enable the Court to add a person as party to a proceedings, on such terms which may appear to the Court to be just, if it considers that the presence of the said person is necessary, in order to effectively and fully adjudicated upon the question involved in a suit / proceedings. In the present case, the application for probate can be effectively adjudicated after hearing the petitioner and respondent, therefore, the reasoning of the trial Court in the impugned order that the petitioner is already party to the proceedings, cannot be faulted.
5.3 The prayer made in the application filed by the petitioner, is for joining him as applicant No.2 in the application for grant of probate. Admittedly, the interests of the petitioner and the respondent are conflicting and the ground for rejection of the application by the trial Court as stated in the impugned order that, there cannot be two applicants to the proceedings, who have inter se disputes among themselves, cannot said to be either illegal or unjustified. The petitioner has already filed objections which can be taken into consideration, while deciding the application and as the petitioner is already party to the proceedings as an objector, he will get an opportunity to put forth his case, therefore, in my considered view, the trial Court has rightly rejected the application under Order 1, Rule 10 of the Code. Moreover, the rejection of the application by the impugned order will not prejudice the petitioner, as his right of hearing as an objector is intact and has not been taken away by the said order.
5.4 For the above-stated reasons, and as the impugned order does not suffer from any manifest error of law or jurisdiction, the interference of this Court is not warranted.
6.0 Accordingly, the petition fails, and is dismissed. Rule is discharged.
(SMT.
ABHILASHA KUMARI, J.) Umesh/ Top