Gujarat High Court
Bhupendrabhai Samjubhai & vs Diwaliben on 24 February, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
C/MCA/2408/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR CLARIFICATION) NO. 2408 of 2013
In FIRST APPEAL NO. 942 of 2005
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BHUPENDRABHAI SAMJUBHAI & 1....Applicant(s)
Versus
DIWALIBEN,W/O SAMJUBHAI & 2....Opponent(s)
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Appearance:
MR APOORV K.JANI FOR MR ASHISH M DAGLI, ADVOCATE for the
Applicants.
MR GIRISH K PATEL, ADVOCATE for the Opponent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 24/02/2014
ORAL ORDER
The present application has been filed by the applicantsoriginal appellants in First Appeal No. 942/2005 praying for modification/ review/ clarification in the judgment dated 12.06.2013 passed by this Court in the First Appeal.
2. The learned advocate seeks modification in view of holding in para14 of the judgment, which runs as under: "14. At the request of Mr. Ashish Dagli, learned advocate for the appellants, it is clarified that only finding on delay, that was adverse to the present appellants,is Page 1 of 5 C/MCA/2408/2013 ORDER herein set aside and other findings of the learned Trial Court, are not interfered with by this Court. So those other findings of learned Trial Court has now become final. Upon remand, the Court would not reconsider the case qua those concluded findings of the learned Trial Court".
3. This Court on 15.10.2013 had ordered to issue notice to the respondents and in response to the notice, learned advocate Mr. Girish K. Patel appears for the respondents.
4. Heard learned advocates for the parties.
5. Learned advocate Mr. Apoorv Jani appearing for learned advocate Mr. Dagli for the applicants invited attention of the Court to para7 of the order of the learned trial Court wherein the learned trial Court has recorded its conclusion on various issues discussed by it. Learned advocate Mr. Jani briefly referred to the facts of the case.
6. In the present case, the applicants filed Civil Misc. Application No. 70/2002 in the Court of learned Civil Judge (SD), Junagadh for issuance of probate/letter of administration of the Will. The said application came to be dismissed by the learned trial Court solely on the ground that it was filed by the applicants after a lapse of 16 years of making of the Will by the deceased. The Civil Misc. Application was Page 2 of 5 C/MCA/2408/2013 ORDER contested by the present respondents before the trial Court. The trial Court had framed as many as 8 issues. The parties had led evidence before the trial Court. In the fairly elaborate order, the trial Court has considered the merits of the case. Although the trial Court was pleased to reject all the objections raised on behalf of the respondents, the Civil Misc. Application came to be dismissed only on the ground, as referred above, that the applicants filed Civil Misc. Application after a lapse of 16 years.
7. The discussion made by the learned trial Court in its order passed on merits does not truly reflects "conclusion" recorded by it in para7 of its order. Though the applicants' application for probate came to be dismissed solemnly on the ground that it was filed after a lapse of 16 years, the trial Court has not framed any issue separately on the point of limitation. As observed in the judgment of this Court rendered in First Appeal No. 942/2005, the trial Court has held that all the essential ingredients for issuance of probate/letter of administration, i.e. genuineness of Will etc., are in favour of the present applicants. The learned trial Court has found so after considering the evidence on record and rival submissions. Rejection of the applicants' Civil Misc. Application No. 70/2002 on the ground of moving it after a lapse of 16 years was found to be bad and illegal by this Page 3 of 5 C/MCA/2408/2013 ORDER Court and, therefore, First Appeal No. 942/2005 was allowed by this Court. While allowing the appeal, this Court has made observations, as referred to above, in para14.
8. It may be stated that what is important and material is the discussion and findings recorded by the Court while considering the rival plea. The "conclusion" recorded by the trial Court in para7 does not truly reflect the discussion made by it in the order. The apprehension of the applicants is not correct. The opponents cannot derive any benefit by incorrect reference to the "conclusion" made by the trial Court in para7 of the order. The fact remains that the findings recorded by the learned trial Court on merits are against the present respondents. That finding has become final in view of the fact that the respondents have not challenged the same at any time.
9. In view of the above, it is clarified that the "conclusion" recorded by the trial Court in para7 of its order is not in consonance with the findings and discussion made by it in its order. The say of this Court that finding on rest of the issues has become final is in context with the discussion made by it, i.e. by trial Court, in its order.
10. With the above clarification, present review Page 4 of 5 C/MCA/2408/2013 ORDER application stands disposed of accordingly.
(R.D.KOTHARI, J.) Patel Page 5 of 5