IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:04..07..2008 CORAM HONBLE Mr.A.K.GANGULY, CHIEF JUSTICE and HONBLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA O.S.A.No.190 of 2008 and M.P.No.1 of 2008 ----------- S.P.Kaveri Achi, No.137, Kandanur Road, Karaikudi 623 001. ..Appellant. Vs. C.T.Ramasamy, 11, Ambadi Road, Kotturpuram, Chennai 85. ..Respondent. PRAYER: Appeal filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 11 of the Original Side Rules against the order of the learned single Judge passed in Appln.No.1691 of 2008 in T.O.S.No.51 of 2002 dated 22.04.2008. ----------- For Appellant :: Mr.T.V.Ramanujam, Senior Counsel For Mr.P.L.Naraynan For Respondent :: Mr.M.Subramaniam, Senior Counsel For Mr.Arvind Subramaniam ----------- J U D G M E N T
THE HONBLE THE CHIEF JUSTICE
This appeal has been filed by one S.P.Kaveri Achi, who was the defendant in T.O.S.No.51 of 2002, against the judgment and order passed by the learned single Judge on 22.04.2008 in Application No.1691 of 2008 in T.O.S.No.51 of 2002.
2. The relevant facts of the case are that a petition under Sections 222 and 276 of the Indian Succession Act read with Order XXV Rule 4 of the Original Side Rules of the Madras High Court was filed by Mr.C.T.Ramasamy in the matter of last Will of Mr.CT.RM.CT. Chidambaram Chettiyar, since deceased. In the said petition it was claimed that C.T.Ramasamy is the son of the testator and the present appellant is the daughter of the testator. The testator died on 26.05.1999 leaving behind a registered Will dated 31.08.1998. It is claimed in the petition that C.T.Ramasamy was the executor of the said Will and there were only two legal heirs namely, the present appellant, who is the only daughter of the testator, and C.T.Ramasamy, the son. In the petition, a prayer was made to allow the petitioner viz., C.T.Ramasamy to prove the Will in Common form so that Probate can be granted to the petitioner. However, in this case the grant of probate became contentious as the appellant was opposing the grant.
3. In this connection, some of the dates, which are relevant, may be noted. On 06.07.1999 Caveat Petition No.100 of 1999 was filed by the appellant. On 07.10.1999 a petition was filed for probate by C.T.Ramasamy and the same was numbered as O.P.No.97 of 2001. On 26.04.2001 first notice dated 11.04.2001 was issued for the service on the appellant and the same was returned with the endorsement has gone out. Then a second notice dated 10.07.2001 was sent, but it was also returned with the endorsement has gone out. Thereafter, on 23.07.2001 the appellant entered appearance through counsel, but however, no affidavit was filed on behalf of the appellant.
4. Thereafter, the appellant on 21.02.2002 filed an application to excuse the delay in filing affidavit in support of the Caveat Application No.1021 of 2002. On 09.12.2002 the original petition for grant of probate was converted into title suit and numbered as T.O.S.No.51 of 2002. Then on 03.12.2006 summons dated 24.11.2006 was received by the appellant. On 21.12.2006 the written statement should have been filed by the appellant but it was not filed. On 05.01.2007 the date of hearing was fixed. On 10.01.2008 when the matter came up before the learned Judge of the first Court, His Lordship adjourned the matter for filing written statement on 29.01.2008 by way of last chance. On 30.01.2008 the matter again came up before the learned Judge, but written statement was not filed and the appellant was also absent. The matter was set ex parte and for recording ex parte evidence the matter was posted on 06.02.2008. On 06.02.2008 the matter came up before the learned Judge, witnesses were present, but the matter was adjourned to 15.02.2008 on payment of cost. On 15.02.2008 the matter was again taken up by the learned Judge. The petitioner and attesting witnesses were present, however, learned counsel for the appellant submitted that the appellant had undergone heart surgery and was in ICU, and prayed for adjournment. The matter was adjourned to 29.02.2008 on payment of cost.
5. On 29.02.2008 the matter again came up before the learned Judge. The petitioner and attesting witnesses were present, evidence was recorded by the Court, and probate was granted, but the appellant was absent. Then an application was filed by the appellant for revoking the order dated 29.02.2008 passed in T.O.S.No.51 of 2002 to that the respondent therein viz., C.T.Ramasamy filed a counter. The matter was heard on contest and the application filed by the appellant was dismissed by the learned Judge by a reasoned order dated 22.04.2008. Assailing the said reasoned order, this appeal has been filed.
6. Learned senior counsel for the appellant relied on a number of judgments in support of his contention. Reliance was first placed on a decision of the Division Bench of the Patna High Court in the case of Tribeni Kuer v. Shankar Tiwari reported in AIR 1971 Patna 391. In the Patna case, the subject matter of challenge was an order passed by the District Judge setting aside an ex parte order in a revocation case, which was filed for revoking the probate of a Will, which was obtained ex parte. In para.9 at page 392 of the report, the learned Judges, after referring to various judgments in the previous paragraphs, held that the provisions of Order 9 Rule 9 of the Civil Procedure Code are clearly applicable to probate proceedings. The learned Judges thereupon held that the provisions of Order 9 Rule 13 of the Civil Procedure Code are also applicable to probate proceedings and ultimately, the Patna High Court held that the District Judge who passed the ex parte order had jurisdiction to set aside the ex parte order in Revocation Case No.7 of 1965.
7. Reliance was next placed on the judgment of the Supreme Court in the case of M.K.Prasad v. P.Arumugam reported in AIR 2001 SC 2497. In that case, the learned Judges of the Honble Supreme Court were considering the scope of Order 9 Rule 13 of the Civil Procedure Code in the context of Section 5 of the Limitation Act. The learned Judges held, while dealing with an application under Order 9 Rule 13, the Court has to keep in mind the extent of the property involved in the case and the stake of the parties, and keeping those questions in mind the delay in filing an application for setting aside may be disposed of. Relying on the said provision, learned senior counsel for the appellant submitted that in the instant case there is no delay in filing the application for revoking the ex parte order. Following the ratio in the case of M.K.Prasad, learned senior counsel submitted that while considering the application for setting aside, the learned Judge of the first Court should have considered the stake of the parties and the extent of the property involved. He, further, submitted that the appellant is the only daughter of the testator and the respondent claims to be an adopted son of the testator and the appellant is an elderly lady aged about 76 years and is suffering from serious ailment and resides at a place, which is distant from Chennai. These factors, it was argued, were not considered by the learned Judge in the order under appeal.
8. Reliance was also placed on the judgment of the Supreme Court in the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor reported in AIR 2001 SC 207. In that judgment, the learned Judges of the Supreme Court held that when a suit was decreed ex parte in consequence of non-appearance of the counsel on the date fixed for hearing on account of strike call given by the advocates and an application for setting aside the ex parte order was made stating that the appellant was in another city and it was not possible for him to make arrangement for appearance in Court in view of the strike called, in such circumstances, the ex parte order should be set aside, subject to payment of costs. Learned senior counsel submits, admittedly, in the instant case there was a strike on the date when the ex parte order was passed i.e., on 29.02.2008.
9. Reliance was also placed on the judgment of the Supreme Court in the case of G.P.Srivastava v. R.K.Raizada and others reported in 2000 (3) SCC 54. Learned senior counsel relied on para.7 of the said judgment where the provision of Order 9 Rule 13 of the Civil Procedure Code has been discussed. Learned senior counsel relied on the interpretation of sufficient cause given by the Honble Supreme Court in that paragraph. The Honble Supreme Court held that the words was prevented by any sufficient cause from appearing must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. The Supreme Court, further, added that sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression and such expression cannot be put in a strait jacket. Further the Supreme Court expressed an opinion that sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. It was, further, held that that if sufficient cause is made out for non-appearance of the party on the date fixed for hearing when ex parte order was passed, the party cannot be penalized for his previous negligence which has been over looked and condoned earlier. The Court, further, held when the parties approach the Court immediately after the ex parte order was passed and within the statutory period, discretion is normally exercised in their favour, provided the absence was not mala fide or intentional.
10. Learned senior counsel also relied on Section 268 of the Indian Succession Act, where it has been statutorily provided that the probate proceedings, save as thereinafter otherwise provided, are to be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Learned senior counsel therefore submitted that in the instant case, the provisions of the Civil Procedure Code should govern the exercise of discretion of the learned Judge while refusing to revoke the grant of probate on the basis of the application which was filed by the appellant for revoking the same.
11. Learned senior counsel for the respondent, on the other hand, submitted that the petition for revocation was not filed under Order 9 Rule 13 of the Code of Civil Procedure but was filed under Section 263 of the Indian Succession Act. Learned senior counsel submitted that Section 263 of the Indian Succession Act (hereinafter referred to as the Act) provides for revocation of grant for just cause and an explanation to Section 263 has explained what constitutes a just cause. Learned senior counsel submitted that setting aside an ex parte order does not come within the explanation given to Section 263 of the Act. It was, therefore, submitted that since the application for revocation has been filed under Section 263 of the Act and the case does not fall within the statutory provision of Section 263 of the Act, the application for revocation was rightly dismissed by the learned Judge. In support of his contention the learned counsel placed three decisions before this Court, though some other decisions have been referred to in the written note.
12. Reliance was first placed on the judgment of the Division Bench of the Calcutta High Court In the goods of: Judhisthir Dutta & Smt.Anima Dutta Vs. Smt.Bhanumati Dutta & Another reported in 1984(I) Calcutta High Court Notes 182. In that case the learned Judges of the Division Bench held that while Section 263 confers upon a party certain substantive rights to apply for revocation or annulment of probate or letter of administration, Order 9 Rule 13 of the Civil Procedure Code relates to hearing of a case ex parte as well as to an application for setting aside an ex parte decree, and these are matters of procedure. In paragraph 17 at page 189 of the said judgment, the learned Judges held that in view of the clear provisions of Sections 268 and 295 of the Indian Succession Act read with Section 141 of the Code of Civil Procedure, the Court has to follow the procedure laid down in the Code of Civil Procedure for the purpose of granting probate but the substantive rights are all governed by Section 263 of the Act. Learned Judges have specifically held that Section 263 has nothing to do with a case where grant of probate which has been made ex parte and an application can be made for setting aside of that ex parte order by a party who alleges that he was prevented by sufficient cause from appearing at the hearing. In such a situation, the learned Judges held that this will be governed by the provisions of Order 9 Rule 13 of the Code of Civil Procedure and there cannot be any question of conflict between the provisions of Section 263 and the provisions of the Code of Civil Procedure in this regard. It is clear from what has been stated above that the aforesaid decision does not help the contention of the respondent.
13. The other judgment on which reliance has been placed was also delivered by a Division Bench of the Calcutta High Court in the case of Southern Bank Limited Vs. Kesardeo Ganeriwalla and others reported in AIR 1958 Calcutta 377. In that case, the learned Judges considered Section 263 of the Act and held that Section 263 is exhaustive. No one is disputing the aforesaid principle laid down in the said judgment. But, in the instant case, where probate has been granted ex parte, the provisions of Section 263 will not apply. But, what will apply are the provisions of Order 9 Rule 13 as has been held in the case of Judhisthir Dutta discussed herein above. The decision in the case of Southern Bank is not of much assistance to the respondent. This Court finds that the said decision in the case of Southern Bank was considered in Judhisthir Dutta (supra).
14. Reliance was also placed on a decision of the learned single Judge of the Bombay High Court in the case of Smt.Shobha Prakash Lala Vs. Nandlal Hotchand Bhatija and Others reported in 1994 (4) Bom CR 21. In paragraph 20 of the said judgment also the learned Judge held that where the probate proceedings become contentious, then proceedings are to be processed further like a contested suit by applying the provisions of the Code of Civil Procedure. In paragraph 29 of the judgment it has been held that Section 263 of the Indian Succession Act provides the grounds upon which the probate once granted can be revoked. But, in paragraph 30, it has been held, relying on a decision of the Calcutta High Court in Bimal Kantha Sengupta Vs. Sarojini Koner reported in MANU/WB/0067/1985 that the provisions of Order 9 of the Code of Civil Procedure are applicable to testamentary proceedings, and the judgment in the case of Judhisthir Dutta (supra) has been referred to as an authority to show that where an ex parte order of probate has been granted, provisions of Order 9 Rule 13 can be made applicable. The Bombay High Court held where proceeding has been ex parte the only thing the Court is required to consider is whether or not the absence of a party was sufficiently explained while applying for setting aside the ex parte order.
15. The Court finds that in the instant case the order dated 29.02.2008 granting probate was passed on a day when strike was called by the lawyers. The appellants lawyer, therefore, could not be present on that day. The appellant is an ailing and elderly lady, and was not staying at Chennai. In any event, it is not possible for her on a day, when lawyers were not appearing in courts, to arrange for a lawyer to represent her. In the decision of the Supreme Court in the case of Ramon Services (supra) it has been held that when a matter is decided ex parte in view of non-appearance of counsel on the date fixed in view of the strike by the advocates and when an application is made for setting aside that ex parte order, the Court should set aside the ex parte order inasmuch as sufficient cause is made in view of the non-appearance of the counsel on the day of strike. In the other Supreme Court judgment namely., G.P.Srivastava (supra) the Apex Court held that the expression sufficient cause should be liberally construed and the explanation in Order 9 Rule 13 application should be considered from the point of view whether on the date the ex parte decision was passed there was sufficient cause for non-appearance. Past conduct cannot be considered for refusing to set aside an ex parte order. Following the aforesaid principle this Court holds that in the instant case sufficient explanation for non-appearacne was given. Though in the application for setting aside the ex parte order, Section 263 of the Act is mentioned, but from the tenor of the application and the grounds in this appeal, it is clear that the application is for setting aside the ex parte order under Order 9 Rule 13 of the Code of Civil Procedure. This is also clear from the order under appeal. Just non-mentioning of the said provision in the application will not debar the appellant from getting the benefit of the said provision since it has been held affirmatively by different Courts that Order 9 Rule 13 applies for setting aside an ex parte order in a probate proceeding considering the provisions of Sections 265 and 298 of the Act and Section 141 of the Code.
16. In view of the decisions of the Supreme Court, discussed above, sufficient cause was made out. For the reasons aforesaid, the order of the learned Judge dated 22.04.2008 is hereby set aside and consequently, the ex parte order granting probate dated 29.02.2008 is also set aside. The matter must be adjudicated afresh by the first Court.
17. But one thing is clear that the appellant has been negligent in pursuit of her remedy. Therefore, this Court must award costs in favour of the respondent to the extent of Rs.10,000/- (Rupees ten thousand only) to be paid by the appellant in favour of the respondent within a period of one month from today. Upon payment of the said costs the probate proceeding is restored for de novo hearing, and if the appellant has not filed her written statement, she must file it within a period of three weeks from today. If the written statement is filed by the appellant within three weeks from today, the order dated 30.01.2008 also stands set aside.
18. The appeal is allowed to the extent indicated above. Consequently, connected miscellaneous petition is closed.
(A.K.G., C.J.) (F.M.I.K., J.)
04..07..2008.
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THE HONBLE THE CHIEF JUSTICE
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F.M.IBRAHIM KALIFULLA, J.
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Pre-Delivery Judgment
in
O.S.A.No.190 of 2008
04..07..2008.