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1 - 10 of 12 (0.32 seconds)The Code of Civil Procedure, 1908
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
Manekji Manchersha Javeri vs Phiroze Boman Javeri on 25 March, 1969
I have held in my decision in the case of Manekli Manchersha v. Phiroze. that a petition on the Testamentary Side even when it becomes sententious is not a suit in the real sense of the term, but is only to be numbered as a suit. Where from the very nature of a particular step which is required to be taken or a particular document which is required to be filed, the procedure in regard to a suit cannot be made applicable, there is nothing in Rule 710 which would make it incumbent on the Court to apply the same. As far as Section 141 of the Code of Civil Procedure is concerned, the Legislature has provided same sort of limitation when it has enacted that the procedure provided in the Code in regard to suits is to be followed "as far as it can be made applicable" in all proceedings in any court of civil jurisdiction. In my opinion, there is no difference at all between the effect of the words "as nearly as may be" in R. 710 and the words "as far as it can be made applicable" in Section 141, and whether one or the other of those provisions is applied it would make no difference to the decision of the present Chamber Summons. No question, therefore, arises as to whether Rule 710 would prevail or Section 141 would prevail, but it may be pointed out that since the Rules (O. S.) of this Court have been framed under Section 129 of the Code of Civil Procedure, if there were to be such a conflict, it is the Rules of the High Court which would prevail over the sections of the Code of Civil Procedure. In view of the fact that there is no difference between Rule 710 and Section 141 of the Code of Civil Procedure, it is also not necessary for me to consider the question as to whether it is Section 141, Civil P. c. that would apply prior to the stage when the affidavit in support of a caveat is filed and the proceeding is numbered as a suit and it is after that stage that Rule 710 becomes applicable. It is sufficient for the purpose of the present Order to hold that having regard to the very nature and form of an affidavit in support of a Caveat, an application for further and better particulars under Order 6, Rule 5 of the Code of Civil Procedure does not lie.
Ram Chandra And Anr. vs State Of Uttar Pradesh on 26 November, 1956
10. Mr. Mehta has also referred me to the decisions of the Supreme Court in the case of Ram Chandra v. State of U. P., and to the decision of the Privy Council in the case of Thakur Pershad v. Sheokh Fakir-Ullah, (1895) 22 Ind App 44) and has pointed out to me that Section 141 applies to all proceedings in Civil Courts and, according to the view now taken by the Supreme Court in the former case, such a proceeding need not even be an original proceedings.
Indrajitsinghji Vijaysinghji vs Rajendrasinghji Vijaysinghji on 17 March, 1955
Mr. Daji has however referred to the distinction that is drawn in the case of Indrajitsinghji v. Rajendrasinghji, and in several other cases between the procedural provisions of the Civil Procedure Code, and provisions relating to substantive rights and disabilities in the same Code and has pointed out that the procedural provisions of the Code have been applied but not those relating to substantive rights or disabilities, to proceedings which are not proceedings in the nature of a suit. It is not necessary for me to go into that question for the simple reason that the concluding sentence of Rule 710 itself limits the applicability of the Civil Procedure Code only to those provisions of it which are of a procedural nature. There can be no doubt that an application for further and better particulars under Order 6, Rule 5 would be an application which is of procedural nature but as already held by me above. I hold the same to be inapplicable in view of the nature and form of an affidavit in support of caveat.
Maneklal V. Shah vs Jagdish C. Shah on 10 July, 1969
3. Turning first to the English practice relied upon by Mr. Mehta it is stated in Tristram and Coote's Probats particulars of every defence, on whatever ground, in a probate action must may order a party to serve on any other party particulars of any defence stated in the pleading or in an affidavit which has been ordered to stand as a pleading. Mr. Mehta also relied on the statement that is to be found in Supreme Court Practice, 1970, Vol. I Part I, p. 261, that the procedure in regard to particulars is the same in all Divisions of the High Court of Justice in England. The practice in England in regard to testamentary proceedings is however so different that I am afraid no assistance can be derived from the English practice in regard to the furnishing particulars on which Mr. Mehta has relied. I have in my decision in the case of Maneklal V. Shah v. Jagdish C. Shah. pointed out (at p. 722) what that procedure is and how it differs from the Side of this Court. As pointed out in my judgment in the said case, a caveat filed to have force after the expiry of six months from the date on which it was entered, unless a fresh caveat is filed before the expiration of that period, or proceedings are commenced by writ citation or motion while it is in force. After that caveat is filed a warning is issued against the caveator by the party whose application for grant has been stopped and the appearance to such warning by the caveator is required to disclose, inter alia, the interests of the respective parties in the estate of the deceased. With that information, it is open to either party, if their interests conflict to commence an action against the other for the purpose of establishing his own claim and the proceedings that ensue take the form either of a probate action, or of citation proceedings, or of a Motion. Parties to a probate action are described as plaintiffs, defendants, interveners, and parties cited. Moreover, a Statement of Claim has to be filed and a Statement of Defence, and in appropriate cases a counter claim, by the parties to a probate action, as is pointed out in the Supreme Court Practice, 1970, Vol. I. Part I at a p. 1102, and in Tristram & Coote's Practice, 23rd End. at pp. 673 and 674. There can be no doubt that the procedure by way of application for further and better particulars would be clearly applicable to pleadings in the nature of a Statement of Claim or a reply or a counter-claim, as the case may be, but the difficulty that arises in this country is that there is no procedure by way of the filing of a statement of claim or a reply or a counter-claim as there is in England. Mr. Mehta who has made considerable research and has placed the entire legal position before me with great industry has fairly pointed out to me that the practice that prevails in our Court even to-day is the practice which was in force under the Rules of the Supreme Court (Esslesiastical) prevailing in England as far back as the year 1895.
Section 10 in The Code of Civil Procedure, 1908 [Entire Act]
Section 129 in The Code of Civil Procedure, 1908 [Entire Act]
Laxmi Investment Co. Pvt. Ltd. vs Tarachand Harbilas And Ors. on 20 April, 1967
In the last resort, Mr. Mehta sought to rely on the inherent powers of the Court under Section 151 of the Code of Civil Procedure and he has referred me to the decision of this Court in the case of Laxmi Investment Co. Pvt. Ltd. v. Tarachand, where an application under Order 9, Rule 9 to set aside the dismissal of a suit for default was itself dismissed for default, and it was held that a further application to restore that application could be entertained under Section 151 of the Code of Civil Procedure. In order to invoke the inherent powers of the Court under Section 151 it must, however be shown that resort to such a power is necessary for the ends of justice or to prevent abuse of the process of the Court. In the view which I have taken above, viz. that it would not be proper to apply the procedure by way of an application for further and better particulars to an affidavit in support of a caveat, it can hardly be said that it would be necessary for the ends of justice to entertain such an application under Section 151. In any event, having regard to the fact that Rule 710 deals in specific terms with the applicability of the procedural provisions of the Code of Civil Procedure to a testamentary suit and sets a limitation thereon by incorporating the words "as nearly as may be" therein, there would be no scope for resorting to the inherent powers of the Court under Section 151 of the Code of Civil Procedure. It is well settled that resort cannot be had to inherent powers where there is a specific provision which deals with the particular matter . In the result, I hold that the present application for particulars does not lie in regard to the affidavit filed by the defendant in support of the caveat and, on that ground alone. I would dismiss this Chamber Summons.