Madhya Pradesh High Court
Bablu Mandal vs Smt. Vandana Bhowmik on 2 November, 2007
Equivalent citations: 2008(1)MPHT273, AIR 2008 (NOC) 830 (M. P.), 2008 AIHC (NOC) 800 (M. P.)
ORDER K.K. Lahoti, J.
1. This revision is directed against the order dated 20th July, 2007 by the Second Additional District Judge, Bhopal in MJC No. 93/2007 by which petitioner's application under Order 7 Rule 11, CPC was rejected.
2. The facts of the case are as under:
(a) Late Sukhram Bhowmik was husband of respondent Smt. Vandana Bhowmik. He died on 17-12-2003. The applicant filed an application for grant of probate on the basis of will dated 22-4-2003 stated to be executed by late Sukhram Bhowmik in his favour by which first floor of a dwelling house MIG 48, Sector 3-A, situated at Saket Nagar, Bhopal stated to be bequeathed in favour of the applicant.
(b) The application filed before the Second Additional District Judge was registered as MJC No. 17/2006, in which summon was issued to the respondent/non-applicant. The summon was returned back with the report that respondent refused to accept the same and on the basis of this, respondent was proceeded an ex parte and final order dated 30-10-2006 Annexure R-3 was passed against the respondent thereby a probate was granted in favour of the petitioner.
3. The respondent asked the petitioner to vacate the accommodation which was in possession of the petitioner, as an employee of husband of respondent. The petitioner informed to the respondent that the Court had issued probate in his favour on basis of will which was executed by Sukhram Bhowmik. On getting this knowledge, respondent after seeking legal advice, filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred as 'CPC') on 15-3-2007 for setting aside ex parte order dated 30th October, 2006, on the ground that no summon was tendered or served on the respondent on 14-3-2006. It was alleged by respondent that she was at her home along with her sister on that date, but no one came to her to serve the summon. The will alleged by the petitioner is a forged will and the petitioner obtained probate without information to respondent/non-applicant. On getting information in respect of proceedings, the respondent filed an application before the Court along with an application under Section 5 of the Limitation Act to condone the delay occurred in filing the application, supported by documents regarding the treatment of the respondent. Copy of the application is on record as Annexure R-4.
4. The application was registered as MJC No. 93/2007 and the Trial Court issued notice to the petitioner. The petitioner filed reply denying the allegations of the application and has also filed an application under Order 7 Rule 11 of CPC alleging that the provisions of Order 9 Rule 13 of CPC are not applicable in the proceedings of probate, under provisions of Indian Succession Act, 1925 and the application be dismissed.
5. The Trial Court considering the facts of the case and relying on judgment of Patna High Court in Smt. Tribeni Kaur and Anr. v. Shankar Tiwari and Ors. and a judgment of Calcutta High Court in Bimla Kanta Sengupta v. Sarojini Koner , found that the provisions of Order 9 of the CPC are applicable in the proceedings of probate under the Indian Succession Act, 1925 and rejected the application under Order 7 Rule 11 of the CPC. This order is under challenge in this petition.
6. The learned Counsel appearing for the petitioner submitted (a) that the provisions of Order 9 Rule 13, CPC are not applicable in the proceedings of probate and the Court below erred in rejecting the application filed by the petitioner, (b) That when the provision of Order 9 Rule 13 is not applicable, the rejection of the application was misconceived. It is submitted that this revision be allowed, the impugned order be set aside, and the application under Order 7 Rule 11, CPC filed by the petitioner be allowed and the application filed by respondent under Order 9 Rule 13, CPC be dismissed.
7. The learned Counsel appearing for the respondent supported the order passed by the Court below and submitted that the provisions of Order 9 Rule 13 of the CPC are applicable in the present case and the Court below has rightly rejected the application filed by the petitioner. In the case, no summon was served on the respondent and the petitioner by manipulation had got endorsed the summon as 'refused' while in fact, the respondent who is a widow old lady was sick and was available at home and there was no question of refusal of the summon. The application was filed under Order 9 Rule 13, CPC showing sufficient cause for setting aside exparte order. Reliance is placed to Apex Court judgment in Mrs. NaliniNavin Bhagwati v. Chandravadan M. Mehta , Smt. Tribeni Kaur v. Shankar Tiwari and Bimla Kanta Sengupta v. Sarojini Koner and submitted that this revision may be dismissed with costs.
8. In this case, only question is whether the provisions of Order 9 Rule 13, CPC are applicable in respect of setting aside ex parte order in the probate proceedings under Chapters II and III of the Indian Succession Act, 1925.
9. Section 268 of the Act provides that the proceedings of the Court of District Judge in relation granting probate and letters of administration shall save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. So the procedure envisaged in the CPC, 1908 has been made applicable and by virute of Section 141 of the CPC, the procedure provided in the CPC in regard to suits shall be followed as far as it made applicable, in all proceedings in any Court of civil jurisdiction. In view of the aforesaid, the procedure envisaged in the CPC is applicable and regulate the proceedings of Chapters II and III of the Act. As per Section 2(bb) "District Judge" has been defined a Judge of a Principal Civil Court of original jurisdiction. Order 9 Rule 13, CPC provides setting aside decree ex parte against defendant and it gives right to the defendant to apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suits was called on for hearing, and if the Court is satisfied that the summon was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms and condition. The provision of Order 9 Rule 13 provides two contingencies : summons sent was not duly served or the applicant was prevented by any sufficient cause from appearing when the case was called for hearing. Under Section 263 of the Indian Succession Act, 1925 revocation or annulment of grant can be directed on existence of a just cause. Section 263 reads thus:
263. Revocation or annulment for just cause.--The grant of probate or letter of administration may be revoked or annulled for just cause.
Explanation: Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
10. Section 263 gives wide power to the Court, who granted probate or letters of administration to revoke or annul a grant for just cause. Just cause has been explained in Section 263 itself. From reading of Order 9 Rule 13 of the Code, it is apparent that Order 9 Rule 13 provides power to the Court to set aside ex parte decree in specific circumstances, but under Section 263 of the Act, the Court is empowered to revoke or annul a grant for just cause, which has been explained under Section 263 of the Act. The explanation under Section 263 is exhaustive and on recording a finding that there exists a just cause, the Court granting probate or letters of administration is having jurisdiction to revoke or annul such grant. Section 263 provides that on existence of fact that the grant was obtained in proceedings which were defective in substance, or the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case, or the grant was obtained by means of an untrue allegation of fact essential in point of law to justify the ground, though such allegation was made in ignorance or inadvertently, or the grant has become useless and inoperative through circumstances, or the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of II or III part of the Act, or the inventory or account furnished to Court was untrue in a material respect, the grant of probate may be revoked or annulled.
The Explanation also illustrate various circumstances of just cause in which the grant may be revoked or annulled. If service on the other side was defective or without a due service on the respondent, the probate was obtained, then the aforesaid ground in substance covered under Explanation (a) and the proceedings can be treated as defective, and probate can be revoked under Section 263 of the Act. From the perusal of the aforesaid facts, it is apparent that the provisions of Section 263 of the Act are wide and exhaustive, and gives jurisdiction to the Court to revoke or annul the grant for just cause, and non-service or defective service is one among the grounds on which probate can be revoked on annulled.
11. It is the settled law that mere mention of wrong provision of law when the power can be exercised under a different provision by itself is not sufficient ground to deny justice in the matter and merely the application which ought to have been filed under Section 263 of the Act was filed under Order 9 Rule 13, CPC will not be a ground to reject the application under Order 7 Rule 11 of the CPC. If the facts stated in the application are sufficient, then it is a just cause for revocation or annulment of a grant in favour of a party. In this case, the respondent had stated that she never refused the summon of the Court as she was available at home and no one approached to her for service of summon. In the opinion of this Court, it was a just cause for invoking the jurisdiction of the Court under Section 263 of the Act.
12. Now, the question may be considered whether the provisions of Order 9 Rule 13 of the CPC are applicable in the matter. The decision cited may be seen firstly. The Apex Court in Nalini Navin Bhagwati (supra), held that to revoke probate or letter of administration a miscellaneous application would lie which shall be decided on the facts either summarily or after recording evidence. In this case, the Apex Court had not considered this aspect that for revocation of probate whether the provisions of Order 9 Rule 13 can apply or not? The aforesaid judgment is on a different point.
In Smt. Triveni Kaur (supra), the Division Bench of Patna High Court held in Para 9:
Considering the circumstances of the case, I am of the opinion that the provisions of Order 9, Rule 13 of the Code of Civil Procedure are applicable to probate proceedings and, as such, it cannot be stated that the learned District Judge has no jurisdiction to set aside the ex parte revocation order passed in Revocation case.
In Bimla Kanta Sengupta (supra), a Division Bench of Calcutta High Court, considering this aspect held thus:
*** *** *** *** *** We accordingly, hold that in view of Section 141 of the Code and particularly in view of Sections 268 and 295 of the Indian Succession Act, Rule 9 of Order 9 of the Code is applicable to a probate proceedings dismissed for default and may be pressed into action for its restoration.
13. In Employment Officer, v. S. Evarinathan AIR 1986 Karnataka 167, the Karnataka High Court held that the succession certificate is neither decree nor order and cannot be executed under Order 21 of the CPC. In V.M. Skaria v. K.T. George AIR 1999 Kerala 320, the Kerala High Court held that the order granting or refusing latter of administration is not decree. Mere fact that the application on being contentious was converted into suit does not make an order a decree.
14. On the basis of the aforesaid judgments, it is submitted by the petitioner that provisions of Order 9, CPC are not applicable in the case and the Court below erred in entertaining the application under Order 9 Rule 13, CPC. But Section 268 of the Act provides that the proceedings of the Court of District Judge in relation to the granting of probate and letters of administration shall save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Section 141 of CPC provides the procedure in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. In view of the aforesaid specific provision under Section 268 of the Act and Section 141 of the CPC, the matter may be examined in the light of provisions contained in Section 263 of the Act. Though the provision of Order 9 of the CPC has not been made specifically applicable, but Section 263 of the Act provides that the grant of probate may be revoked or annulled for just cause and just cause shall be deemed to exist where the proceedings were defective in substance. If the probate was obtained by non-service, or defected service or by a fraudulent service on the other side, it can be very well be treated as a just cause within the meaning of Section 263(a) of the Act. So where the provisions of Section 263 of the Act are wide in nature and meet out all the exigencies including the exigencies enumerated in Order 9 Rule 13 of the CPC it may very well be found that the provision of Order 9 Rule 13, CPC can be invoked in a proceeding for revocation or annulment. A grant of probate on showing that the proceedings were defective in substance can be revoked or annulled. In the opinion of this Court, the provisions of Order 9 Rule 13 of the CPC are not directly applicable, but to show that the service on the defendant was detective or there was a sufficient cause to the defendant for non-appearing before the Court when an ex parte proceedings were directed against the applicant and for this limited purpose, the provisions of Order 9 Rule 13 read with Section 263 of the Act can be invoked.
15. In view of the aforesaid discussion, the Court below has rightly rejected the application filed by the applicant under Order 7 Rule 11 of the Code in which no error of jurisdiction is found. This revision is without merit and is accordingly dismissed with costs.