Allahabad High Court
Sharad Agarwal vs Srikant Sharma (Since Deceased) And 2 ... on 13 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2026:AHC:111379 HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 4987 of 2026 Sharad Agarwal .....Petitioner(s) Versus Srikant Sharma (Since Deceased) And 2 Others .....Respondent(s) Counsel for Petitioner(s) : Anil Kumar Pathak, Devansh Misra Counsel for Respondent(s) : Ayush Jain, Ram Prakash Srivastava Court No. - 5 HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Devansh Misra, learned counsel for the petitioner-plaintiff and Sri Pramod Jain, learned Senior Advocate assisted by Sri Ayush Jain, counsel, who appears for respondents-defendants. 2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits thus with the consent of the parties, writ petition is being decided at the fresh stage.
3. The case of the petitioner-plaintiff is that a Probate Case No. 216/70 of 2013 (Sharad Agarwal Vs Srikant Sharma and others) came to be instituted before the District Judge, Kanpur Nagar with a prayer that the Court be pleased to grant probate to alleged will deed dated 02.05.2013. In the said suit on 23.07.2014 while disposing of an application 24Ga2 under Order 40 Rule 1 read with Section 151, a receiver came to be appointed by the Additional District Judge, Court no. 10, Kanpur Nagar which was subject matter of challenge in First Appeal From Orders No. 2264 of 2014 by the defendant-respondents being Srikant Sharma v. Sharad Agarwal, in which on 02.02.2015, the First Appeal From Orders was allowed, the order dated 23.07.2014 passed by the Additional District Judge, Court No. 10, Kanpur Nagar in Probate Case No. 216/70/2013 was set aside, however, it was further provided that during the pendency of the suit, the parties to the Probate Case and in particular, the opposite party, Shri Srikant Sharma who was appellant before the Court was restrained from alienating the property in dispute and creating any encumbrances or third rights and further restrained from changing the nature of the property in dispute and in any matter with a further direction that the trial court shall make an endeavour to participate the disposal of the probate case and to conclude the same preferably within a period of six months. Thereafter an application under Order 39 Rule 1 and 2 CPC read with Section 151 came to be preferred by the plaintiff-petitioner on 28.02.2023 which came to be rejected on 02.08.2024 by the Additional District Judge, Court No. 19, Kanpur Nagar in Probate Case No. 216/70 of 2013 (New Case No. 03 of 2019) against which a First Appeal From Orders No. 1604 of 2024 came to be preferred and orders were passed on 12.09.2024, the following orders were passed:
"1. This first appeal from order under order 43 Rule 1(r) read with Section 104 C.P.C. has been filed on behalf of plaintiff-appellant against the order dated 02.08.2024 passed by Additional District & Sessions Judge, Court No. 19, Kanpur Nagar in Probate Case No. 216/70 of 2013 (new number Case No. 3 of 2019) (Sharad Agarwal vs. Shrikant Sharma and others) by which application filed by appellant under Order 39 Rules 1 & 2 C.P.C, (Paper No. 338-Ga) was rejected.
2. Heard Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Chandan Sharma, learned counsel for the appellant, Sri P.K. Jain, learned Senior Advocate assisted by Sri Ayush Jain, learned counsel for the respondent nos. 2 & 3 and perused the record.
3. Brief facts of the case are that the plaintiff appellant has filed a probate suit in the court of District Judge, Kanpur Nagar on the ground that one Asha Lata Katiyar @ Asha Lata Sharma has executed a will deed in his favour on 02.05.2013 in respect of House No. 113/7, Swaroop Nagar, Kanpur Nagar. The probate case was registered as Probate Case No. 216/70 of 2013. It was the case of the plaintiff before the trial court that the house in question was bequeathed by late Smt. Asha Lata Katiyar on 02.05.2013 and she died on 23.05.2013. After the death of Smt. Asha Lata Katiyar on 23.05.2013, the will deed dated 02.05.2013 become enforced and the plaintiff has become the owner of said property. The respondent no. 1, who was impleaded as defendant in the probate case has filed counter affidavit / written statement denying the allegations of plaint and it was specifically pleaded that he is husband of Asha Lata Katiyar and after her death, became the owner of said property and the present probate case has been filed by the plaintiff on the basis of forged will deed alleged to be executed on 02.05.2013.
4. During the pendency of probate case, the plaintiff had filed an application under Order 40 rule 1 read with Section 151 C.P.C. (Paper No. 24-Ga) for appointment of receiver to protect the suit property. The respondent no. 1 Shrikant Sharma has filed objection to the said application. The learned trial court after considering the objection of respondent no. 1 has allowed the application filed by plaintiff under Order 40 rule 1 read with Section 151 C.P.C., vide order dated 23.07.2014 appointing Circle Officer, Swaroop Nagar, Kanpur Nagar as receiver to protect the property in question till disposal of probate petition. The order of trial court dated 23.07.2014 was challenged by Shrikant Sharma defendant of probate case before this Court by filing First Appeal From Order No. 2264 of 2014 which was allowed by Division Bench of this Court on 02.02.2015, setting aside the order dated 23.07.2014 of trial court on the ground that the trial court has not recorded any finding in respect of prima-facie case in favour of plaintiff. The Division Bench of this court while allowing the appeal has restrained the defendant Shrikant Sharma from alienating the property in dispute or creating any third party interest in respect of disputed property.
5. The defendant Shrikant Sharma had moved an application before the trial court on 25.08.2015 seeking permission to execute the sale deed in favour of respondent nos. 2 and 3 on the ground that he has already executed a registered agreement in their favour on 03.06.2013. The said application was rejected by the trial court vide order dated 15.02.2016 on the ground that there is a restrain order passed by Division Bench of this Court dated 02.02.2015 in First Appeal From Order No. 2264 of 2014.
6. Respondent nos. 2 and 3 have moved an impleadment application in the probate case and were impleaded as defendant nos. 2 and 3. The defendant nos. 2 and 3 are claiming possession over the suit property on the basis of sale deed dated 31.07.2013 which was alleged to be executed by power of attorney holder Tarsel Singh. The defendant nos. 2 and 3 after the death of defendant no. 1 Shrikant Sharma have started misusing the property and were trying to raise constructions causing damage to the property in suit.
7. The plaintiff appellant had moved an application under Order 39 Rules 1 & 2 read with Section 151 C.P.C. in probate case (Paper No. 338-Ga) with the prayer to restrain the respondent nos. 2 and 3 from making any encroachment on suit property and further restraining them from creating any third party interest in respect of suit property. In alternative, it was also prayed that receiver may be appointed to preserve the property in question. The respondent no.s 2 and 3 have filed their objection to the application 338-Ga. The trial court had rejected the application 338-Ga by order dated 02.08.2024 which is impugned in the present first appeal from order.
8. It is submitted by learned senior Advocate appearing on behalf of plaintiff-appellant that the trial court has erred in rejecting the application filed by plaintiff-appellant under Order 39 Rules 1 and 2 C.P.C. without considering the evidence and materials which are available on record. The trial court has recorded a perverse finding of fact that defendant nos. 2 and 3 are in possession over the property in dispute on the basis of registered agreement to sale dated 03.06.2013 as well as sale deed of some part of the premises in question dated 31.07.2013. It is further submitted that the house in question was locked by police and proceeding under Section 145 Cr.P.C. was initiated on the basis of police reports dated 15.04.2013 and 28.06.2013. The proceeding under Section 145 Cr.P.C. was dropped by Additional City Magistrate-VI, Kanpur Nagar on 08.07.2013 and possession was delivered to Shirkant Sharma on 13.07.2013. Supurdginama is annexed as Annexure No. 9 to the affidavit. Since Shrikant Sharma was not in possession over the property in question before 13.07.2013, there was no occasion to Shrikant Sharma to give possession of property in question to respondent nos. 2 and 3. It is specifically mentioned in the agreement to sale dated 03.06.2013 that possession has not been handed over to the purchaser and even there is no promise to give possession. The trial court has also failed to consider that possession has never been handed over to respondent nos. 2 and 3 through agreement to sale dated 03.06.2013 and had erred in recording a perverse finding that respondent nos. 2 and 3 are in possession. Shrikant Sharma defendant no. 1 has filed a counter affidavit in probate case on 19.02.2014 stating therein that he is in settled possession of disputed property. This Court has also recorded the finding in F.A.F.O. No. 2264 of 2014, which was decided on 02.02.2015 that Shrikant Sharma was in possession of the property in dispute. From the evidence, which are available on record before the trial court it is evident that on the date of execution of agreement to sale on 03.06.2013, Shrikant Sharma was not in possession of disputed property and there was police lock. The possession was handed over to Shrikant Sharma by the police on 13.07.2013, which is evident from Supurdginama. Shrikant Sharma has also claimed his possession in his counter affidavit filed in probate case on 19.02.2014. The possession of Shrikant Sharma was also accepted by this Court in F.A.F.O. No. 2264 of 2014 decided on 02.02.2015. Since, Shrikant Sharma was not in possession over the property in dispute prior to 13.07.2013, there was no occasion for delivery of possession to defendant nos. 2 and 3 on 03.06.2013. The trial court has erred in replying the possession memo alleged to be executed by Shrikant Sharma in favour of defendant nos. 2 and 3 through notary affidavit on 03.06.2013, whereas in registered agreement to sale of the same day i.e. 03.06.2013, there was specific denial of possession. The notary affidavit dated 03.06.2013 appears to be forged and fictitious document, which cannot establish the possession of defendant nos. 2 and 3.
9. Learned Senior Advocate appearing on behalf of plaintiff / appellant very vehemently argued about the malice intention of Presiding Officer and serious allegations have been levelled in the affidavit filed along with second stay application. Copy of complaint made to the Hon'ble Chief Justice and Registrar General, High Court Allahabad dated 13.08.2024 has also been annexed as Annexure No. 1 to the affidavit filed in support of second stay application dated 29.08.2024. It is stated in the complaint dated 13.08.2024 that son of Presiding Officer has made call by his mobile to the applicant??s mobile demanding bribe and has also sent QR code. Lastly, it is submitted that when the appellant could not fulfil the illegal demand, the order impugned has been passed by learned trial court.
10. On the other hand, learned senior advocate appearing on behalf of defendant nos. 2 and 3 submits that the learned trial court after considering the evidence and materials which are available on record has recorded a categorical finding of fact that there is no prima-facie case in favour of plaintiff-appellant in respect of suit property. It is further submitted that although there was an averment in agreement to sale dated 03.06.2013 that possession has not been given to purchaser and also there is no promise for possession in future, but Shrikant Sharma, the executer of agreement to sale has also executed possession letter in favour of defendant nos. 2 and 3 on the same day i.e. 03.06.2013 through notary affidavit and since then they are in possession over the same. It is further submitted by learned Senior Advocate appearing on behalf of respondent nos. 2 and 3 that in earlier round of litigation, the Division Bench of this court has allowed the first appeal from order filed by Shrikant Sharma / Defendant no. 1 holding that the trial court has erred in appointing receiver without recording any prima-facie case in favour of plaintiff-appellant. The Hon'ble High Court has recorded the finding that plaintiff-appellant was not in possession over the suit property and has accepted the possession of Shrikant Sharma over the property in dispute. The possession of plaintiff-appellant in respect of suit property has already been declined by this Court. It is further submitted that the will was alleged to be executed in favour of appellant on 02.05.2013 by Smt. Asha Lata Katiyar, whereas, she went to Medanta Hospital, Gurugaon, Haryana on 02.05.2013 and was not present in Kanpur. The alleged will deed is a forged document. The plaintiff was never in possession over the suit property. The trial court has rightly rejected the application filed by plaintiff-appellant under Order 39 rules 1 and 2 C.P.C.
11. Considered the submissions of learned counsel for the parties and perused the record.
12. The trial court while rejecting the application under Order 39 Rules 1 & 2 C.P.C. (Paper No. 338-Ga) has recorded the finding that defendant nos. 2 and 3 are in possession relying upon the notary affidavit executed by Shrikant Sharma transferring the possession to defendant nos. 2 and 3 on 03.06.2013. The trial court has failed to consider that on 03.06.2013, Shrikant Sharma himself was not in possession over the suit property as there was a police lock on the premise and under the order of learned Magistrate, the possession was handed over to Shrikant Sharma on 13.07.2013. Since, Shrikant Sharma took possession over the property in dispute only on 13.07.2013, there was no occasion to Shrikant Sharma to handover the possession of disputed property to respondent nos. 2 and 3 on 03.06.2013. The trial court has also failed to consider the counter affidavit filed by Shrikant Sharma in probate case on 19.02.2014 claiming his possession over the property in question. Relevant paragraph no. 8 of counter affidavit dated 19.02.2014 is reproduced herein below :
"8. That the contents of para 13 of the affidavit are not admitted. The deponent is in settled possession of the disputed property and he cannot be removed from its possession on the whims and surmises of the petitioner."
13. The trial court has also failed to consider the specific denial by Shrikant Sharma for giving possession to the defendant nos. 2 and 3 at the time of execution of agreement to sale dated 03.06.2013. Agreement to sale has been annexed as Annexure No. 12 to the stay application filed in support of this appeal. The relevant extract of agreement to sale dated 03.06.2013 is reproduced herein below :-
" ?? ?? ????? ???? ?????? ??????? ???? ?? ???? ????????? ??? ?? ????? ? ??? ???? ???? ?? ??? ?? ?? ? ?? ???? ?? ????? ???? ?? ??? ???"
14. Learned Senior Advocate appearing on behalf of defendants-respondents has failed to explain that under what circumstance, the possession was not handed over by Shrikant Sharma to defendant nos. 2 and 3 at the time of registered agreement to sale dated 03.06.2013 and there was specific denial that neither possession has been handed over nor there is any promise to hand over the possession to the purchaser and on the same day i.e. on 03.06.2013, possession letter was executed by Shrikant Sharma in favour of defendant nos. 2 and 3 through notary affidavit giving possession. The trial court has recorded perverse finding of fact regarding possession of defendant nos. 2 and 3 in respect of suit property.
15. From the evidence and materials which are available on record, both the parties have failed to prove their possession in respect of suit property. The trial court has erred in rejecting the application no. 338-Ga admitting the possession of defendant nos. 2 and 3, whereas, there was no authentic evidence regarding possession of defendant nos. 2 and 3. The trial court has recorded perverse finding in respect of possession of defendant nos. 2 and 3 while rejecting the application 338-Ga.
16. From perusal of evidence and materials which are available on record, both the parties have failed to prove their possession over the suit property and for the purposes to save the property, it is appropriate that some responsible officer from District Administrateion be deputed to preserve the property in question.
17. Matter requires consideration.
18. Respondent nos. 2 and 3 may file counter affidavit within a period of three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.
19. List in the third week of October, 2024.
20. In the mean time, District Magistrate, Kanpur Nagar is directed to depute any officer not below the rank of Sub Divisional Magistrate to look after and manage / maintain the property in question i.e. 313/7, Swaroop Nagar, Kanpur Nagar till further orders of this Court.
21. Since, there are serious allegations have been made against the Presiding Officer, the office is directed to place the copy of second stay application dated 29.08.2024 before the Hon'ble Administrative Judge of Kanpur Nagar Judgeship for kind perusal of His Lordship"
4. Thereafter a correction application N. 02 of 2024 came to be preferred which was allowed on 18.09.2024, the following was observed as under:
"Correction Application No. 2 of 2024 This correction application has been filed by the learned counsel for the appellant seeking correction in the order dated 12.9.2024. The correction application is allowed.
In third line of paragraph 20 of order dated 12.9.2024, "113/7" be read in place of "313 /7".
5. In the meantime, it appears that the plaintiff-petitioner preferred a Transfer Application (Civil) No. 698 of 2024, in which on 03.10.2024, the following orders were passed:
"1. Heard Sri M. C. Chaturvedi, learned Senior Advocate, assisted by Sri Anil Kumar Pathak, learned counsel for applicant and perused the record.
2. This transfer application has been filed by the applicant seeking transfer of Probate Case No. 216/70 of 2013 (Sharad Agrawal Versus Srikant Sharma and others) from the Court of Additional District Judge, 17th, Kanpur Nagar to any other nearby district of Kanpur Nagar.
3. It is submitted by learned counsel for the applicant that the applicant has filed probate case to grant the probate of will dated 22.5.2013 in favour of applicant, which was registered as Probate Case No. 216/70 of 2013 (Sharad Agrawal Versus Srikant Sharma and others). The case was transferred to the Court of Additional District Judge, Court No. 19 on 27.5.2024. The son of Presiding Officer had contacted the applicant and demanded bribe for obtaining favourable order. The applicant had made complaint of Presiding Officer to this Court and had also moved transfer application on 12.8.2024 before the District Judge, Kanpur Nagar, which was registered as Transfer Application No. 624 of 2024. The District Judge instead of deciding the transfer application, has transferred the case by administrative order dated 16.8.2024 at the behest of Additional District Judge, Court No. 19, Kanpur Nagar to the Court of Additional District Judge, Court No. 17, Kanpur Nagar. The case of wife of applicant being J. S. C. C. Case No. 19 of 2016 was also transferred to the Court of Additional District Judge, Court No. 27 under the influence of Additional District Judge, Court No. 19 and there is no chance of justice.
4. There are serious allegations against the District Judge, Kanpur Nagar and Additional District Judge, Court No. 19, Kanpur Nagar in paragraphs 10, 11, 12, 17, 18 and 19 of the affidavit filed in support of transfer application.
5. Matter requires consideration.
6. Issue notice to opposite party nos. 1 to 3. Steps be taken within two weeks by registered post.
7. List in the first week of November, 2024.
8. Call for comments from District Judge, Kanpur Nagar and Additional District Judge, Court No. 19, Kanpur Nagar in respect of paragraph nos. 10, 11, 12, 17, 18 and 19 of the affidavit filed in support of transfer application on or before the next date fixed.
9. Until further orders of this Court, the further proceedings of Probate Case No. 216/70 of 2013 (Sharad Agrawal Versus Srikant Sharma and others) pending in the Court of Additional District Judge, 17th, Kanpur Nagar, shall remain stayed.
10. Registrar (Compliance), High Court, Allahabad is directed to communicate this order to the District Judge, Kanpur Nagar and Additional District Judge, Court No. 19, Kanpur Nagar for compliance."
6. A development also took place that the defendant-respondents herein preferred Civil Appeal No. Nil of 2024 arising out of SLP (C) No. 22823 of 2024, in which on 14.10.2024, the following orders were passed:
"1. Leave granted.
2. As the main suit in 0.S. No.3/2019 on the file of ADJ, 19th Kanpur Nagar is still pending, we are of the view that there was no need for any interim order appointing the receiver was required to be passed by the High Court.
3. In such view of the matter, the parties are directed to maintain status quo.
4. We request the trial Court to dispose of O.S. No.3/2019 expeditiously, preferably within a period of nine months from today.
5. We further make it clear that any observations made in the impugned order or by us will not have any bearing in the main suit pending before the Trial Court.
6. Accordingly, the impugned order stands modified..
7. The appeal is disposed of in above terms. No costs.
8. Pending application(s), if any, shall stand disposed of."
7. Since there was an interim order operating in Transfer Application (Civil) No. 698 of 2024 on 03.10.2024 staying further proceedings of the Probate Case No. 216/70 of 2013 before the court of Additional District Judge, Court No. 17, Kanpur Nagar, thus, an application came to be preferred being Misc. Application No. 656 of 2025 in Diary No. 3520 of 2025 in Civil Appeal No. 11119 of 2024, in which on 17.04.2025, the following orders were passed:
"We are not inclined to pass any order in this application as, admittedly, a Transfer Petition has been filed by the applicant(s) before the High Court and an order of stay on the probate proceedings has been obtained. In such view of the matter, it is impossible to give effect to the order passed by us on 14.10.2024, giving time for disposal of the main suit in 0.S. No.3/2019.
In such view of the matter, the Miscellaneous Application stands disposed of by giving liberty to the applicant(s) to seek appropriate relief in the matter pending before the High Court including for extension of time, if so advised."
8. Thereafter the Transfer Application (Civil) No. 698 of 2024 (Sharad Agarwal versus Srikant Sharma (since deceased) and two others) came to be dismissed on 26.11.2025, order whereof is quoted hereinunder:
"1. Rejoinder affidavit filed today in Court is taken on record.
2. Heard learned counsel for the applicant and Shri Jain, learned Senior counsel appearing for the respondents.
3. It is contended that proceedings for probate being Case No. 216/70 of 2013 is pending before the court of Additional District Judge, Court No. 17, Kanpur Nagar.
4. This transfer application under Section 24 of the C.P.C. has been filed for transferring the case out of the district. The matter had travelled to the Hon'ble Apex Court through Contempt Petition (C) No. 668 of 2025 in Civil Appeal No. 11119 of 2024, wherein the Apex Court had requested this Court to proceed with the Transfer Application (Civil) No. 698 of 2024 and decide the same at the earliest.
5. Learned Senior Counsel appearing for the respondents submits that the allegation was against the officer concerned, who has now been transferred out of Kanpur Nagar and the new officer has joined in his place. According to him, nothing survives against the officer concerned.
6. As there is no denial to the fact that the Judicial Officer, who was trying the case has already been transferred out of the district and the only grievance of the applicant was against the officer concerned, the transfer application has become infructuous.
7. No case for interference is made out. This transfer applicant stands dismissed as infructuous.
8. Interim order stands discharged."
9. As per the plaintiff-petitioner, during the pendency of the Transfer Application (Civil) No. 698 of 2024 and the passing of the order dated 03.10.2024 and dismissal of the said transfer application on 26.11.2025, certain events took place. Firstly on 03.02.2025, the Court of Additional District Judge, Court No. 24, Kanpur Nagar on the disposal of Application No. 426Ga required PW-1, Sharad Agarwal to appear in person for the cross-examination on 05.02.2025 thereafter on 12.02.2025 another order came to be passed whereby the Application 426Ga was rejected, PW-1, Sharad Agarwal was directed to appear for cross-examination on the next date i.e. 18.02.2025 and on 21.02.2025 again an order came to be passed whereby the Additional District Judge, Court No. 24, Kanpur Nagar rejected Application No. 432Ga and disposed of Application No. 435Ga and a direction was issued that PW-1, Sharad Agarwal to appear in person for cross-examination on the next date otherwise the cross-examination stands closed fixing on 01.03.2025. Apart from the same, on 24.03.2025, the Additional District Judge, Court No. 25, Kanpur Nagar proceeded to pass an order which reads as under:
"Case taken up in compliance of time bound direction passed by Hon'ble Supreme Court vide order dated 14.10.2024. This information has been forwarded to Hon'ble High Court by ADJ-17, Kanpur Nagar vide Letter No. 3091/1 dated 25.11.2024.
Today a list of witnesses has been filed on behalf of the plaintiff.
The matter was also listed for the cross examination of PW-1 Sharad Agarwal but PW-1 is not present.
The matter was again taken up at 4 p.m. still PW-1 Sharad Agarwal is not present in court. No exemption application has been moved on his behalf.
Earlier also many opportunities have been granted to PW-1 Sharad Agarwal for his cross examination, cost also has been imposed for his non-appearance but till date PW-1 has not appeared before the court.
His cross examination is pending for the past 14 years.
Taking into consideration the time bound direction passed by the Hon'ble Apex Court, the evidence of PW-1 Sharad Agarwal stands closed and not to be read in evidence.
The matter is now listed for the evidence of rest witnesses from the plaintiff's side.
List the matter on 26.03.2025 at 12 p.m."
10. On 11.04.2025 another order came to be passed which reads as under:
"From the perusal of the previous ordersheets it transpires that the plaintiff has been filing endless applications that too on issues on which the court has already passed it's order. The plaintiff is well aware about it but still through clever drafting is moving application with clear intentions only to stay the proceedings which is in violation of the time bound direction of the Hon'ble Supreme Court. It is a futile exercise which the plaintiff is adopting. No assistance is being provided by the plaintiff in order to comply with the direction of the Hon'ble Supreme Court. Hence application no. 451 Ga is rejected.
The matter is listed for cross examination of DW 1 Hari Shankar Gupta. Last opportunity is granted to the plaintiff to cross examine DW 1 Hari Shankar Gupta.
List the matter on 16.04.2025 at 12 p.m."
11. Aggrieved against the said orders, a recall application came to be preferred which came to be rejected on 08.01.2026 which was subject matter of challenge while filing an amendment application which was allowed on 13.04.2026.
12. The matter was heard on several dates and as per the order-sheet on 27.04.2026, the petitioner was accorded opportunity to file a supplementary affidavit which is available on record.
13. Learned counsel for the plaintiff-petitioner has sought to argue that whatever might be there was certain reasons beyond the control and the comprehension of the plaintiff-petitioner which created a situation whereby the plaintiff-petitioner could not participate in the proceedings. He submits that there already existed an interim order operating saying the further proceedings in the probate case and on 03.10.2024 and the matter was also traveled up to Apex Court and ultimately post dismissal of the transfer application on 26.11.2025, now there is no legal impediment, thus, one opportunity be accorded to the plaintiff-petitioner to participate in the proceedings and to do the needful which is required for prosecuting the case. Submission is that the legal principal that the interim order merges with the final order is there but bearing in mind the fact that merits may not be throttled on technicalities that too which is emanating in the present case, any condition be imposed in that regard and while inviting attention towards the supplementary affidavit, it is contended that the plaintiff-petitioner has himself stated on oath that the plaintiff-petitioner shall undertake to participate in the proceedings and not take unnecessary adjournments and further as per the instructions received from his client, the plaintiff-petitioner is also agreeable and willing to pay cost so that the other party may be compensated in that regard.
14. On the other hand, Sri Pramod Jain, learned Senior Advocate submits that the present case is a classic case of dilatory tactics at each and every point of time, particularly, when the probate case is of the year-2013 and now when the matter is being taken up, it is May, 2026. Submission is that they had been concealment of the factum of passing of order in the transfer application before the Supreme Court and further the court below had no option but to proceed as it cannot abstain itself while not proceeding with the matter in that regard. Submission is that numerous opportunities have been accorded to the plaintiff-petitioner to get cross-examined by the defendants. However, he submits that the anxiety of the defendants is that the said proceedings be given a logical end without further delay and time bound direction be issued in that regard.
15. I heard these submissions so made across the bar and for you the report many
16. Plainly and simply, the issue involved is regarding the conduction of the probate case which is pending since-2013. Though transfer application came to be preferred, interim order was accorded, the same was dismissed, matter was traveled up to Supreme Court, clarification was also accorded by the Supreme Court but on a larger issue what is relevant is disposal of the probate case in a time bound manner that to on merits so that parties are satisfied.
17. Accordingly, bearing in mind the aforesaid factual situation and also the statements made in paragraph-3 of the supplementary affidavit and the stand taken up by Sri Mishra, as per the instructions received from the client, the petition is being decided in the following manner:
(a) The orders dated 03.02.2025, 24.03.2025, 11.04.2025 and 08.01.2026 in part insofar as that it closes opportunities to lead evidence is set aside.
(b) By saying so, it does not mean that the plaintiff-petitioner shall take unnecessary adjournments.
(c) The court below shall fix a date in the week commencing on 27.05.2026 on that date parties shall be present before the Court.
18. Since the summer vacations are advancing, thus, a date shall be fixed in the second week of July, 2026 and the proceedings shall be taken on day to day basis and shall be concluded with most expedition within a period of three months.
19. The orders so passed today for day to day hearing is on account of the mandate of the Hon'ble Supreme Court in that regard.
20. Since the parties are represented through their counsel(s), thus, it would be deemed that they have full knowledge of the orders. In case, adjournments are sought then the same should be on exceptional circumstances not beyond two days at a stretch.
21. Needless to point out that the passing of this order may not be construed to an expression that this Court has gone into the merits of the case and any observations made herein-above would not influence or obsessed, in order to complete justice, cost of Rs. 15,000/- is imposed upon plaintiff-petitioner which shall be paid to defendants-respondents.
22. With the aforesaid observation, the writ petition is disposed off.
(Vikas Budhwar,J.) May 13, 2026 Ashu