JUDGMENT

Debangsu Basak, J. - The executor of the last will and testament of Kiran Wadan Bhagat, since deceased has applied for withdrawal of the proceedings being PLA No. 143 of 2016, non-prosecution of the same by the executor with the liberty to file afresh before the court of law having jurisdiction to entertain an application for grant of probate of the last will and testament of the deceased dated November 20, 2002.

2. Learned Advocate appearing for the executor has submitted that, the executor is no longer willing to proceed with the probate proceedings before this Hon'ble Court. He has submitted that, there is a probate proceeding pending before the Barasat Court. It is therefore just and proper that the executor be permitted to withdraw the probate application and file a proceeding for probate before the district delegate at Barasat.

3. Learned Senior Advocate appearing on behalf of a purchaser of an immovable property has submitted that, his client had purchased the immovable property which is one of the immovable properties referred to in the will, by a registered deed of conveyance dated May 5, 2002. He has submitted that, the executor knew of the right, title and interest of the purchaser in the immovable property concerned. The purchaser along with two others had purchased the immovable property by the registered deed of conveyance dated July 5, 2005. Nonetheless, the executor did not have any citation issued about the proceedings being PLA No. 143 of 2017 to such purchasers. The executor had obtained a probate on July 14, 2017 of the will without having the necessary citation issued to the purchasers. The purchasers of upon coming to know about the probate proceeding and the probate granted had filed an application under section 263 of the Indian Succession Act, 1925 for revocation of the probate dated July 14, 2017. By an order dated June 25, 2020, such probate had been revoked.

4. Learned Senior Advocate appearing for the purchaser has submitted that, the application for non-prosecution is mala fide. This Hon'ble Court does not suffer from lack of jurisdiction to try, entertain and determine the application for grant of probate. He has referred to Order XXIII Rule 1 of the Code of Civil Procedure, 1908. He has submitted that since the executor has not asked for unconditional leave to withdraw the proceedings, the executor is not entitled to have the proceedings withdrawn with the leave as prayed for. In support of his contentions Learned Senior Advocate appearing for the purchaser has relied upon ( Kharda Co. Ltd. v. Durga Charan Chandra, (1910) 11 CalLJ 45) , ( V. Rajendran & Anr. v. Annasamy Pandian (Dead) Through Legal Representatives Karthyayani Natchiar, (2017) 5 SCC 63) and ( K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458) . He has submitted, that, there is a probate proceeding pending before the Barasat District Delegate which involves a different will. There is also a suit pending before the Sealdah Court.

5. The parties have referred to Order XXIII Rule (1) and 1(4) which are as follows: -

"1. Withdrawal of suit or abandonment of part of claim"

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim :

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

1(3) Where the plaintiff -

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim."

6. The Division Bench in Kharda Co. Ltd. (supra), has considered Order 23 Rule 1 of the Code of Civil Procedure, 1908 prior to its ame