Gujarat High Court
Samir Jayendrabhai Shah & 4 vs Heirs Of Deceased Dr Pravinbhai ... on 13 March, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/3288/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3288 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3830 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3832 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3833 of 2014
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SAMIR JAYENDRABHAI SHAH & 4....Petitioner(s)
Versus
HEIRS OF DECEASED DR PRAVINBHAI HARGOVINDDAS SHAH &
4....Respondent(s)
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Appearance:
MR ANKUR Y OZA, ADVOCATE for the Petitioner(s) No. 1 - 5
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR SP KOTIA, ADVOCATE
for the Respondent(s) No. 1 - 1.1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/03/2014
COMMON ORAL ORDER
1. Heard Mr.Oza, learned advocate for the petitioners and Mr.Dave, learned senior advocate with Mr.Kotia, learned advocate for the respondent.
2. In present petition, the petitioners have prayed, inter alia, that:
1 C/SCA/3288/2014 ORDER
"23(A) issue appropriate Writ, direction and/or order to quash and set aside the orders dated 17/09/2010 passed below exhibit 63 and exhibit 65, order dated 30/07/2013 passed below exhibit 97 and order dated 20/12/2013 passed by the Court of learned Additional Senior Civil Judge, Bhavnagar and consequently allow the relief prayed for in application dated 26/11/2013 at exhibit 103 in Regular Civil Suit no.1151/2008;"
3. Before proceeding further, it is necessary and relevant to mention that after having filed a composite petition being Special Civil Application No.3288 of 2014 challenging the orders passed by the learned trial Court below Exh.63, Exh.65 and Exh.97 as well as Exh.103, the petitioners filed three separate petitions viz. Special Civil Application No.3830 of 2014 and Special Civil Application No.3833 of 2014 and Special Civil Application No.3832 of 2014 challenging the orders passed below Exh.63 and Exh.65 and Exh.97 respectively and restricted present petition, Special Civil Application No.3288 of 2014 to the challenge against order dated 26.11.2013 passed below Exh.103.
4. At the time of hearing, learned advocates for 2 C/SCA/3288/2014 ORDER the petitioners and the respondents have made common submissions for all petitions and actually, they have also jointly requested to hear and decide all matters by common order and having regard to the said request as well as the subjectmatter of the petitions, it appears appropriate to dispose of all petitions by a common order and therefore, the petitions are decided by this common order.
5. In order to consider and decide the petitioners' grievance against the impugned orders, it is appropriate to take into account certain facts involved in these petitions.
6. According to the petitioners, somewhere in 1939, grandfather of present petitioners purchased certain immovable property from the Maharaja of Bhavnagar State on 99 years' of lease basis and thereafter he constructed a house on the said property. Thereafter, somewhere in 1949, grandfather of the petitioners executed a Will. According to the petitioners, grandfather 3 C/SCA/3288/2014 ORDER bequeathed movable and immovable properties situate on the said plot (which he purchased from the Maharaja of Bhavnagar State on 99 years of lease) in favour of his wife, i.e. grandmother of the petitioners. The petitioners' grandfather died in August 1949.
7. The petitioners have claimed that their grandmother executed a Will in July 1959 and bequeathed movable and immovable properties situated over the said plot and to her son, i.e. father of the petitioners. Sometime thereafter, i.e. in July 1961, the petitioners' grandmother died.
8. More than 30 years thereafter, father of the petitioners moved an application for probate.
9. The said application was registered as Civil Misc. Application No.52 of 1994, wherein the petitioners' father requested for issuance of probate for the Will made by his mother.
10. The said application came to be subsequently 4 C/SCA/3288/2014 ORDER converted into civil suit and is registered as Regular Civil Suit No.1151 of 2008 which is pending before the learned trial Court.
11. Subsequently, father of the petitioners also filed Special Civil Suit No.45 of 1994 and prayed for declaration and permanent injunction.
12. While the said two proceedings, i.e. proceedings of Regular Civil Suit No.1151 of 2008 (where the request for probate is made) and Special Civil Suit No.45 of 1994 (for declaration and permanent injunction were pending) another suit being Special Civil Suit No.96 of 1996 came to be filed with prayer for partition including the above referred property purchased by petitioners' grandfather from the Maharaja of Bhavnagar State.
13. Thus, after on and from 1996, the proceedings of three suits were pending before the learned trial Court.
14. Thereafter an application came to be moved by 5 C/SCA/3288/2014 ORDER present petitioners requesting the Court to consolidate Regular Civil Suit No.1151 of 2008 and Special Civil Suit No.96 of 1996.
15. The petitioners also requested the Court to record common evidence of both the suits in Special Civil Suit No.1151 of 2008.
16. The said request was granted by the Court vide order dated 17.9.2010. Subsequently another application, i.e. Exh.97 was moved, wherein the petitioners requested the Court to disallow the earlier applications, i.e. Exh.63 and Exh.65 and to put at naught the orders passed below the said applications and to segregate the suit proceedings.
17. After considering the application and hearing the parties, the learned trial Court passed order dated 30.7.2013 and disallowed the said application Exh.97.
18. Subsequently, i.e. about five months thereafter, the petitioners again moved another 6 C/SCA/3288/2014 ORDER application in form of review application seeking review of order below Exh.97. The said application dated 20.12.2013 came to be registered as Exh.103.
19. After considering the submissions by the contesting parties, the learned trial Court rejected the said application Exh.103 for the reasons recorded in the order.
20. As mentioned above, initially, the petitioners filed common petition being Special Civil Application No.3288 of 2014 challenging the abovementioned orders in the said common and composite petition. However, subsequently, to avoid any technical objection, the petitioners filed three separate petitions challenging the orders under Exh.63, Exh.65 and Exh.97 respectively and has restricted present petition to order below Exh.103.
21. Mr.Oza, learned advocate for the petitioners submitted that the impugned orders are 7 C/SCA/3288/2014 ORDER unsustainable and the request made by the petitioners deserves to be granted, more particularly in view of the fact that the Court which considers the application seeking probate, will not have jurisdiction to record evidence as regards the subjectmatter of Special Civil Suit No.96 of 1996 or even in respect of the suit being Civil Misc. Application No.52 of 1994 and therefore, the application made by the petitioners ought to have been granted, however, the learned trial Court, without appreciating the restriction on the Court's jurisdiction considering the probate application, rejected the application and therefore, the impugned orders deserve to be set aside.
22. Mr.Oza, learned advocate for the petitioners relied on the decision in the case of Maltivahuji vs. Kalindivahuji, reported in AIR 1994 Gujarat
42.
23. Mr.Dave, learned senior advocate for the respondents has opposed the petitions and 8 C/SCA/3288/2014 ORDER submitted that it was the petitioners who on their own moved the application and invited the said orders. Accordingly, at the request of the petitioners, the said orders were passed and have been subsequently acted upon and implemented by all parties and the learned Court has also conducted the proceedings as per the said orders. The said orders were not challenged by anyone, hence they attained finality. He also submitted that the request which the petitioners made by way of application Exh.103 was earlier made by the petitioners under application Exh.97 and the said request was already considered and rejected by the Court and therefore, the application Exh.103 is rightly and justifiably rejected by the learned trial Court and the said order does not warrant any interference. As regards the order passed below Exh.97, learned advocate for the respondents submitted that the Court has recorded cogent and sufficient reasons for rejecting the said application, more particularly the reason that the petitioner himself invited 9 C/SCA/3288/2014 ORDER the said orders and the orders have been acted upon and implemented by all parties including the Court and therefore, the petitioners requested the Court to disallow the earlier applications, i.e. Exh.63 and Exh.65 and to put at naught the orders passed below the said two applications and to segregate the suit proceedings.
24. Heard learned advocate for the petitioners and the respondents and also examined the material on record.
25. At the outset, it is relevant and necessary to recall that one of the suits, i.e. Special Civil Application No.1151 of 2008 is filed with the request to issue probate.
26. Therefore, the jurisdiction of the learned Court which is considering and trying the said suit, would be that of a probate the Court and consequently, the jurisdiction of the concerned Court would be restricted only to the jurisdiction available to a probate Court. 10 C/SCA/3288/2014 ORDER
27. On the other hand, the other two suits have been filed for different relief/s inasmuch as one suit is filed for declaration and injunction, whereas the other suit is filed with a request for partition of the suit properties (which include the property purchased by present contesting respondents) by metes and bounds and that, therefore, the jurisdiction of the learned Court considering the said two suits would be that of any other Court exercising ordinary civil jurisdiction.
28. In this background, the petitioners herein had consciously, i.e. despite being aware about the difference between the jurisdiction which can be exercised by the learned probate Court and the jurisdiction which can be exercised by the learned Court considering the other two suits (though the Court trying all three suits might be the same, the jurisdiction of the Court in former case would be restricted) submitted the applications Exh.63 and Exh.65 and requested the 11 C/SCA/3288/2014 ORDER Court to consolidate the said suits and record common evidence and at the behest of the petitioners herein and in absence of any objection by defendants, the learned Court passed the orders dated 17.9.2010 below Exh.63 and Exh.65 respectively and resultantly, the suits came to be consolidated and are being tried accordingly.
29. It is pertinent that the said orders were invited by the petitioners and were never challenged by the plaintiff/s and on the other hand the defendants also did not oppose the request and/or the order. The petitioners never tried to get the order varied.
30. Suddenly, after some time, the petitioners seem to have got another idea and therefore, they moved the application which came to be registered as Exh.97 whereby the petitioners requested the learned Court to segregate and deconsolidate the suits and to try the said suits separately and to record separate evidence.
12 C/SCA/3288/2014 ORDER
31. The learned Court considered the said application and heard the contesting parties and vide order dated 30.7.2013 below Exh.97, the learned Court rejected the request.
32. Now the petitioners have brought under challenge the said order below Exh.97 hence question of challenging and/or examining the order below Exh.63 and Exh.65 does not arise / survive.
33. Now so far as order below Exh.97 is concerned, the learned Court has recorded just, correct and cogent reasons to reject the application Exh.97 and the petitioners have failed to make out any case against order below Exh.97 and no fault can be found with order rejecting said application.
34. It is pertinent that the petitioners herein accepted the said order and did not challenge the said order, in any manner and before any Court and the said order attained finality. 13 C/SCA/3288/2014 ORDER
35. Long time after the learned Court passed order dated 30.7.2013 below Exh.97, the petitioners moved another application, i.e. Exh.103 with request to review the order and with almost identical request and for identical relief as was prayed for in application Exh.97. The learned Court has rejected said application Exh.103.
36. In this background, ordinarily, the impugned order passed by the learned trial Court below Exh.103 cannot be faulted and the Court would, ordinarily, not interfere with the said order, particularly in view of the facts of the case.
37. However, the fact that in Special civil Suit No.1151 of 2008 the plaintiff has prayed for probate, is a relevant consideration for examining present petitions and grievance of the petitioners.
38. In this context and in view of the grounds on which the petitioners moved the applications 14 C/SCA/3288/2014 ORDER Exh.97 and Exh.103 and in view of the fact that the relevant facts of the case are not in dispute, it appears appropriate to take into account the observations made by the Court in paragraphs No.23 to 28 in the decision in the case of Maltivahuji vs. Kalindivahuji, reported in AIR 1994 Gujarat 42:
"23. It is not disputed before me that the first proceeding was civil miscellaneous application or petition for probate which was filed by the widow of the deceased Goswami Govardhaneshji. The opponent No. 1 herein was caveator and/or objector who raised contentions both a bout the genuineness of the will as well as about the sound and disposing state of mind of the deceased. The objector has also raised disputes about the title of the deceased over the property sought to be disposed of by the will. The objector has also claimed that the property in question was ancestral property in the hands of the deceased, and was therefore not liable to be bequeathed by a will. The second proceeding being a special civil suit for partition of the properties left behind by the deceased by metes and bounds and for allotment of the respective share to the coparceners is filed by the present opponent No. 1 and in such suit over and above the question of validity of the will, the question of title of the testator and about the nature of the property shall have to be gone into by the Court of Civil Judge (S.D.). In the present case it is not disputed before this Court that Court of Civil Judge (S.D.), Porbandar is the only Court which is competent to try both, the probate application as well as the special civil suit.
24. From the nature of the aforesaid two proceedings it can be said that some of the issues which arise in both the proceedings as regards capacity of the testator at the time when he made the will and as regards due execution and attestation of the will and as regards consideration of allegedly suspicious circumstances surrounding the will, common question of facts would arise in both the proceedings and evidence in both the proceedings would be common. However, the evidence as 15 C/SCA/3288/2014 ORDER regards nature of the property as to whether it was selfacquired or ancestral and as regards title of the testator over it and also as regards availability of such property for partition by metes and bound would be the questions which would arise in special civil suit only.
25. In the aforesaid situation the question which this Court is called upon to consider is as to whether the aforesaid two proceedings can be consolidated so as to direct the Court to record the evidence in special civil suit and to decide the petition for probate along with special civil suit. The trial Court has, by impugned order below Ex. 152, ordered consolidation of the two proceedings and it is this order which is required to be examined.
26. It is true that the Civil Procedure Code does not provide for joint trial of the suits, but at the same time it is now well accepted position of law that u/S. 151 of the Code of Civil Procedure in appropriate cases an order for consolidation of the cases can be made. The Courts have even ordered joint trial of the cases. A Court has inherent power ex debito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expenses and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases.
27. In the case of M/s. Sohal Engineering Works v. Rustom Jahangir Vakil Mills Co. Ltd., reported in 1981 Guj LR 491 : (AIR 1981 Guj 110), Justice A. M. Ahmadi, (as His Lordship then was) after conjoint reading of Sections 10 and 151 of the Code of Civil Procedure held that the object of Section 10 is to prevent Courts of concurrent jurisdiction from adjudicating upon parallel litigations between the same parties having the same matter in issue with a view to avoiding conflict of decisions. The policy of the law is that if the matter in issue in two parallel suits is identical in the interest of judicial comity, the Court in which the subsequently instituted suit is pending shall stay the proceedings and allow the previously instituted suit to proceed. The key words in the Section are : "the matter in issue is directly and substantially in issue" in the previously instituted suit. However, it may happen that the field of controversy of two suits or proceedings 16 C/SCA/3288/2014 ORDER cannot be said to be wholly identical though it may overlap. In such type of cases very often the major part of the evidence that to be led is common and appreciation of evidence by the Court should also be one or uniform. Therefore, when the two proceedings which arise out of the same transaction or where substantial evidence which is to be led is common, a joint trial of such proceeding is advisable so that considerable public time and expenses would be saved if the two proceedings are tried jointly and the evidence is recorded in one of the two proceedings. It would also avoid inconvenience to the witnesses figuring in the two proceedings as they will not be required to reappear to give evidence in another proceeding. That would also be helpful to avoid multiplicity in the trial of the same issues and to avoid conflict of decision. When the same evidence or practically the same evidence is to be appreciated and finding of facts are to be reached after appreciating such common evidence and when the decision on issues are interdependent it is desirable that the suits are jointly tried by recording evidence in one suit. However, at the same time it shall have to be kept in mind that the jurisdiction of the Court in contentious probate proceeding is exclusive and limited and for the issues which squarely fall within the jurisdiction of the probate Court, the judgment of the probate Court would operate as res judicata. Therefore, in my opinion it would be just and proper to see that the probate Court proceed with the issues which exclusively fall within its jurisdiction. Once the evidence is recorded on the issues which exclusively fall within the jurisdiction of the probate Court, the Court shall proceed to record evidence on issues which arise in the special civil suit and which do not fall within the jurisdiction of the probate Court. It may be that issues may overlap, but it would be necessary to see that the applicant in probate proceeding is called upon to begin evidence and evidence is recorded on all the issues to the parties proceeding first in point of time and thereafter the evidence is recorded in the special civil suit.
28. Ordinarily since judgment in the probate proceeding is judgment in rem it would be appropriate for the Court to direct the Court to dispose of the probate proceeding first in point of time and to stay the civil suit till probate proceeding is decided. However, in the facts and circumstances of this case since the probate proceeding as well as special civil suit are of the year 1982 and since the period of more than 11 years has already elapsed in my opinion it would not be proper to interfere with the discretion exercised by the trial Court whereby the trial Court 17 C/SCA/3288/2014 ORDER has ordered consolidation of the two proceedings. At the same time it shall have to be seen that the Court of exclusive jurisdiction acts within its exclusive jurisdiction only and therefore it shall have to be seen that the court records its evidence on issues in the probate proceeding first in point of time and thereafter proceeds to record evidence in special civil suit. The evidence shall be treated as evidence in the special civil suit itself. The Court is further directed to render separate judgment in two proceedings because as probate court it would be dealing with limited issues while as Court of ordinary civil jurisdiction it will be deciding rest of issues. Appreciation of evidence and findings reached in such proceeding would be interdependent and therefore it would be just and proper to record common evidence by joint trial in one suit only. At the same time with a view to seeing that exclusive jurisdiction of probate court is maintained and its judgment is regarded as conclusive with respect to the issues which it can legitimately decide, in my opinion direction to the trial court shall have to be issued to decide two proceedings by separate judgment on common evidence. Such direction would be consistent with the ends of justice and are issued in this case, more particularly in view of the fact that proceedings are very old and now to direct only probate proceeding to proceed and to stay the civil suit would lead to further delay which would defeat justice. I do not find any substance in the objection raised by Mr. C. D. Kakkad to the effect that parties in the special civil suit are different and that evidence has also commenced in the two proceedings and therefore no order of consolidation can be passed. While agreeing with him that the proceedings are very old and are required to be finalised very soon I do not find any substance in his submission to the effect and consolidation would delay the proceeding. In fact evidence in the two proceedings has just begun i.e. it is at the stage of examinationinchief of the first witness and such examinationinchief is also not over. Therefore, no prejudice is likely to be caused as is suggested by Mr. C. D. Kakkad, learned Counsel for the petitioner."
39. In this background, it would be necessary to keep in focus that the jurisdiction of the learned Court, while it considers and tries and decides the probate suit, i.e. Special Civil Suit 18 C/SCA/3288/2014 ORDER No.1151 of 2008, would be different and restricted than the jurisdiction of the Court while deciding the other two suits and the scope of recording evidence (in the event it becomes necessary to record evidence) in the probate suit would be different than the requirement of the evidence in other two suits.
40. For the foregoing reasons, it appears that while there is no justification to interfere with the order below Exh.103, so also the order under Exh.97, it appears appropriate to pass below mentioned common order and clarify certain relevant aspects as regards further proceedings in the abovereferred three suits so that further dispute or any complexity, particularly about procedural aspects, can be eliminated. Therefore, below mentioned order is passed.
41. When the impugned orders are examined in light of the observations made by the Court in the abovereferred decision, it appears that present petition can be disposed of with 19 C/SCA/3288/2014 ORDER appropriate direction in light of the said observations, particularly the observations in paragraph No.28 of the said decision.
42. After considering the aforesaid decision, particularly the abovequoted observations by the learned single Judge in the aforesaid decision, learned advocates for the petitioners and the respondents also jointly submitted that the petition may be disposed of, at this stage, with appropriate directions and observations in light of the said decision.
43. Under the circumstances, below mentioned order is passed.
44. Having regard to the fact that the probate suit is pending since 1994 and the partition suit is pending since 1996 and the injunction suit is pending since 1994 and that the learned trial Court has, vide orders dated 17.9.2010 (i.e. before almost 3 years) Exh.63 and Exh.65, already consolidated the suit proceedings and has 20 C/SCA/3288/2014 ORDER directed to record common evidence for all suits, it would, otherwise also, not be proper to interfere with the orders whereby proceedings are consolidated, more particularly in view of the fact that the suits are pending since last 18 years and almost 3 years have passed since the learned Court passed order below Exh.63 and Exh.65. However, it is also necessary to ensure that the learned trial Court of exclusive jurisdiction does not travel beyond its restricted jurisdiction and acts within the boundaries of its exclusive jurisdiction and for that purpose it will have to be ensured that the learned Court records evidence on the issues in the probate proceedings first in point of time and thereafter it may proceed to record evidence in special civil suits. Therefore, so as to ensure that the learned Court conducts further proceedings within its jurisdiction and upon keeping in focus the observations by the Court in abovementioned decision particularly in paragraph No.28 of the said decision it is 21 C/SCA/3288/2014 ORDER clarified that it would be open to the learned trial Court, in pursuance of the orders below Exh.63 and Exh.65, to hold joint trial of the probate proceedings, i.e. Special Civil Suit No.1151 of 2008 as well as the other two suits being Special Civil Suit No.45 of 1994 and Special Civil Suit No.96 of 1996 seeking partition of ancestral property, however, the learned trial Court shall decide the said suits by separate judgment to be delivered at the same time after considering the evidence that may be led by the parties. The learned trial Court shall call upon the applicant in the probate proceedings to lead evidence first on the issues which legitimately arise in the probate proceedings and after evidence of the probate proceedings is over, the plaintiff of Special Civil Suit No.96 of 1996 and then the plaintiff in Special Civil Suit No.45 of 1994 shall be called upon to lead evidence on rest of the issues which arise in the said two other suits. After evidence in the aforesaid manner is 22 C/SCA/3288/2014 ORDER recorded, the learned trial Court shall decide the said suits by separate judgment, as aforesaid.
With the aforesaid clarification, the petition is disposed of.
(K.M.THAKER, J.) Bharat 23