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2010 Supreme(Bom) 52
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE & THE HONOURABLE MRS. JUSTICE V.K. TAHILRAMANI
Parties : R.V. Bhasin
Versus
Sunilkumar Kapur
APPEAL NO. 661 OF 2006 IN NOTICE OF MOTION NO......... OF 2006 IN NOTICE OF MOTION NO. 16 OF 2006 IN MISC. PETITION NO. 70 OF 2005 IN TESTAMENTARY PETITION NO.4 OF 2003
Decided on : 12-01-2010
For the Petitioner:R.V. Bhasin, Advocate.
For the Respondents:A.A. Joshi a/w Sanjay Jain i/b M/s. L.J. Law, Advocates.
Headnote:Succession Act, 1925 - Section 263 - Civil Procedure Code, 1908, Order IX, Rule 13 - Probate petition - Probate of Will and codicil - Appeal - Against order of single Judge allowing Notice of Motion and imposing costs of Rs. 25,000/- on appellant - Ex parte decree of dismissal of caveat set aside by condoning delay in filing Notice of Motion - Held - Notice of Motion filed under Order IX, Rule 13 of Code by respondents rightly allowed by single Judge - Single Judge rightly set aside ex parte order of dismissal of caveat - Notice of Motion allowed in toto - Appellant directed to bring respondent on record as L.Rs. of Original Caveator - Order imposing costs of Rs. 25,000/- against appellant quashed and set aside - Observations made against appellant in impugned order expunged. - In the impugned order, there are some personal remarks/observations made against Mr. Bhasin such as (a) In my opinion, Mr, Bhasin was aware of this and there fore in order to obtain from the Court an order in his favour without any contest, he suppressed the information from the Court and (b) it appears that the original plaintiff Mr. Bhasin suppressed from the Court deliberately the material and relevant facts in order to obtain favourable order.
In the circumstances and the facts and discussed hereinabove are satisfied that these observations are required to be expugned as has been prayed for by the appellant.
Notice of Motion No. 16 of 2006 had three prayers i.e. prayer Clauses (a), (b) and (c) Prayer Clause (c) read thus :
that this Hon’ble Court be pleased to direct the plaintiff to amend the plaint in the above Suit by deleting the name of the deceased Ms. Sonia Kapur the Caveator and bring on record her legal heir i.e. the Applicant as the defendant in the above matter as per the schedule annexed to the above Notice of motion.
By the impugned order, the relief prayer Clause (c) came to be declined and consequently the prayer of the applicant to bring him on record as the legal representative of his deceased sister has been turned down. Shri Joshi pointed out that though the caveat is restored to file, the applicant i.e. Mr. Sunil Kapur cannot be continued with the caveat unless he is allowed to be brought on record as legal heir of his deceased sister.
In the circumstances it is held that the notice of Motion filed Under Order IX, Rule 13 of CPC by the present respondent has been rightly allowed by the impugned order and the ex parte order dated 6.11.2003, was rightly set aside.
For the reasons stated herein above Court allow the Notice of Motion No. 16 of 2006 in toto and direct the plaintiff present appellant to bring the respondent on record as the legal representative of the original caveator - Ms. Sonia Kapur.
The observations made personally against the present appellant in the impugned order and reproduced in Para 13 of this order are hereby expunged. The order levying costs of Rs. 25,000/- against the appellant is also quashed and set aside.
B.H.MARALAPALLE, J.
1. This intra court appeal arises from the order dated 07.07.2006 passed in Notice of Motion No. 16 of 2006 in Suit No. 17 of 2003 arising from Petition No. 4 of 2003. The ex-parte decree of dismissal of Caveat passed on 6th November, 2003 has been set aside by condoning the delay caused in filing the Notice of Motion and the original Plaintiff / present Appellant was directed to pay costs quantified at Rs. 25,000/. Prayer (a) and (b) to the exclusion of prayer (c), in the notice of Motion were allowed by the impugned order.
2. The Appellant had filed Petition No. 4 of 2003 in the Original Side of this Court for getting the Probate of Will and Codicil left behind by his close friend Shri. Ram Kumar Kapur who died on 02.10.1998. The testator was survived by two children i.e. daughter by name Ms. Sonia Kapur and son by name Mr. Sunil Kapur – both major. Both the children were cited in the petition and as per the Petitioner, the citation was served. However, only the daughter, on serving of the citation, had filed Caveat in the Probate Petition. Thereafter, the Plaintiff took out Chamber Summons No. 474 of 2003 and prayed for dismissal of the Caveat. In the Chamber Summons, Ms. Sonia had appeared in person and on 06.11.2003, when the Chamber Summons came up before the learned Single Judge, she remained absent and had not filed any reply to the Chamber Summons. It was under these circumstances, the learned Single Judge passed the following order:
“ On the last occasion i.e on 26.6.2003, it was specifically directed that the Defendant was given last chance to file reply to the Chamber Summons. No reply is filed. Today also the Defendant is not present. She is not represented by Advocate. Under the circumstances, the Chamber Summons is allowed. The Caveat filed by the Defendant on 24.03.2003 is dismissed. No oder as to costs.”
3. On 29.11.2003, the Probate was issued. On 01.03.2004, Ms Sonia died and Notice of Motion No. 16 of 2006 was taken out on or about 01.03.2006 i.e after two years of demise of Ms. Sonia. The Notice of Motion, as has been clarified by the learned counsel for the Respondent, was filed under Order IX, Rule 13 of C.P.C to set aside the order of ex parte decree which resulted in grant of probate.
4. It is not much in dispute between the parties that Shri. Ram Kumar Kapur had executed his Will on 05.09.1994. The Probate Application was filed before this Court on 20.12.2002 and the citations have been served on 07.03.2003. On 20.03.2003, the Caveat was filed by late Sonia and in support thereof, she had filed her affidavit on 24.03.2003 and in spite of adjournments on 3 different occasions, she had not filed reply in Chamber Summons No. 474 of 2003.
5. It was submitted by Mr. Bhasin the appellant in person that at the first instance, delay caused in taking out the Notice of Motion for setting aside the exparte decree was not explained and therefore, the learned Single Judge was in error to condone the delay. He further submitted that Ms. Sonia served with the notice and she appeared on 26.06.2003, after she had filed caveat and when the Chamber Summons No. 474 of 2003 was taken out, on her request, by way of last chance, three weeks’ time was granted to file reply / affidavit and she did not do so. On 06.11.2003, again she remained absent and therefore, the Court was justified in allowing the Chamber Summons and dismissing the Caveat filed by Ms. Sonia. As per Mr. Bhasin, there was no procedural error committed when the order dated 06.11.2003 was passed and there was no requirement in law or under the High Court (Original Side) Rules to issue a fresh notice to Ms. Sonia. In short, it was submitted that the Notice of Motion did not make out any reasons so as to satisfy the requirements of Order IX, Rule 13 of C.P.C to set aside the exparte decree and that too, at the behest of the present Respondent who himself was served with the citations and did not file a caveat. Mr. Bhasin, also
