S.P.Kaveri Achi v. C.T.Ramasamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.07.2008CORAMHON’BLE Mr.A.K.GANGULY, CHIEF JUSTICEandHON’BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLAO.S.A.No.190 of 2008andM.P.No.1 of 2008S.P.Kaveri Achi,No.137, Kandanur Road,Karaikudi – 623 001. ..Appellant/Applicant/DefendantVs. C.T.Ramasamy,11, Ambadi Road,Kotturpuram, Chennai – 85. ..Respondent/Respondent/PlaintiffPRAYER: Appeal filed under Clause 15 of the Letters Patent readwith Order XXXVI Rule 11 of the Original Side Rules against the orderof the learned single Judge passed in Appln.No.1691 of 2008 inT.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 TTHE HON’BLE THE CHIEF JUSTICE This appeal has been filed by one S.P.Kaveri Achi, who was thedefendant in T.O.S.No.51 of 2002, against the judgment and orderpassed by the learned single Judge on 22.04.2008 in ApplicationNo.1691 of 2008 in T.O.S.No.51 of 2002. 2. The relevant facts of the case are that a petition underSections 222 and 276 of the Indian Succession Act read with Order XXVRule 4 of the Original Side Rules of the Madras High Court was filedby Mr.C.T.Ramasamy in the matter of last Will of Mr.CT.RM.CT.Chidambaram Chettiyar, since deceased. In the said petition it wasclaimed that C.T.Ramasamy is the son of the testator and the present https://hcservices.ecourts.gov.in/hcservices/ appellant is the daughter of the testator. The testator died on26.05.1999 leaving behind a registered Will dated 31.08.1998. It isclaimed in the petition that C.T.Ramasamy was the executor of thesaid Will and there were only two legal heirs namely, the presentappellant, who is the only daughter of the testator, andC.T.Ramasamy, the son. In the petition, a prayer was made to allowthe petitioner viz., C.T.Ramasamy to prove the Will in Common form sothat Probate can be granted to the petitioner. However, in this casethe grant of probate became contentious as the appellant was opposingthe 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 filedby the appellant. On 07.10.1999 a petition was filed for probate byC.T.Ramasamy and the same was numbered as O.P.No.97 of 2001. On26.04.2001 first notice dated 11.04.2001 was issued for the serviceon the appellant and the same was returned with the endorsement “hasgone out”. Then a second notice dated 10.07.2001 was sent, but it wasalso returned with the endorsement “has gone out”. Thereafter, on23.07.2001 the appellant entered appearance through counsel, buthowever, no affidavit was filed on behalf of the appellant. 4. Thereafter, the appellant on 21.02.2002 filed an applicationto excuse the delay in filing affidavit in support of the CaveatApplication No.1021 of 2002. On 09.12.2002 the original petition forgrant of probate was converted into title suit and numbered asT.O.S.No.51 of 2002. Then on 03.12.2006 summons dated 24.11.2006 wasreceived by the appellant. On 21.12.2006 the written statement shouldhave been filed by the appellant but it was not filed. On 05.01.2007the date of hearing was fixed. On 10.01.2008 when the matter came upbefore the learned Judge of the first Court, His Lordship adjournedthe matter for filing written statement on 29.01.2008 by way of lastchance. On 30.01.2008 the matter again came up before the learnedJudge, but written statement was not filed and the appellant was alsoabsent. The matter was set ex parte and for recording ex parteevidence the matter was posted on 06.02.2008. On 06.02.2008 thematter came up before the learned Judge, witnesses were present, butthe matter was adjourned to 15.02.2008 on payment of cost. On15.02.2008 the matter was again taken up by the learned Judge. Thepetitioner and attesting witnesses were present, however, learnedcounsel for the appellant submitted that the appellant had undergoneheart surgery and was in ICU, and prayed for adjournment. The matterwas adjourned to 29.02.2008 on payment of cost. 5. On 29.02.2008 the matter again came up before the learnedJudge. The petitioner and attesting witnesses were present, evidencewas recorded by the Court, and probate was granted, but the appellantwas absent. Then an application was filed by the appellant forrevoking the order dated 29.02.2008 passed in T.O.S.No.51 of 2002 tothat the respondent therein viz., C.T.Ramasamy filed a counter. The https://hcservices.ecourts.gov.in/hcservices/ matter was heard on contest and the application filed by theappellant was dismissed by the learned Judge by a reasoned orderdated 22.04.2008. Assailing the said reasoned order, this appeal hasbeen filed. 6. Learned senior counsel for the appellant relied on a numberof judgments in support of his contention. Reliance was first placedon a decision of the Division Bench of the Patna High Court in thecase of Tribeni Kuer v. Shankar Tiwari reported in AIR 1971 Patna391. In the Patna case, the subject matter of challenge was an orderpassed by the District Judge setting aside an ex parte order in arevocation 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, thelearned Judges, after referring to various judgments in the previousparagraphs, held that the provisions of Order 9 Rule 9 of the CivilProcedure Code are clearly applicable to probate proceedings. Thelearned Judges thereupon held that the provisions of Order 9 Rule 13of the Civil Procedure Code are also applicable to probateproceedings and ultimately, the Patna High Court held that theDistrict Judge who passed the ex parte order had jurisdiction to setaside the ex parte order in Revocation Case No.7 of 1965. 7. Reliance was next placed on the judgment of the Supreme Courtin the case of M.K.Prasad v. P.Arumugam reported in AIR 2001 SC 2497.In that case, the learned Judges of the Hon’ble Supreme Court wereconsidering the scope of Order 9 Rule 13 of the Civil Procedure Codein the context of Section 5 of the Limitation Act. The learned Judgesheld, while dealing with an application under Order 9 Rule 13, theCourt has to keep in mind the extent of the property involved in thecase and the stake of the parties, and keeping those questions inmind the delay in filing an application for setting aside may bedisposed of. Relying on the said provision, learned senior counselfor the appellant submitted that in the instant case there is nodelay in filing the application for revoking the ex parte order.Following the ratio in the case of M.K.Prasad, learned senior counselsubmitted that while considering the application for setting aside,the learned Judge of the first Court should have considered the stakeof the parties and the extent of the property involved. He, further,submitted that the appellant is the only daughter of the testator andthe respondent claims to be an adopted son of the testator and theappellant is an elderly lady aged about 76 years and is sufferingfrom serious ailment and resides at a place, which is distant fromChennai. These factors, it was argued, were not considered by thelearned Judge in the order under appeal.8. Reliance was also placed on the judgment of the Supreme Courtin the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor reported inAIR 2001 SC 207. In that judgment, the learned Judges of the SupremeCourt held that when a suit was decreed ex parte in consequence ofnon-appearance of the counsel on the date fixed for hearing on https://hcservices.ecourts.gov.in/hcservices/ account of strike call given by the advocates and an application forsetting aside the ex parte order was made stating that the appellantwas in another city and it was not possible for him to makearrangement for appearance in Court in view of the strike called, insuch circumstances, the ex parte order should be set aside, subjectto payment of costs. Learned senior counsel submits, admittedly, inthe instant case there was a strike on the date when the ex parteorder was passed i.e., on 29.02.2008. 9. Reliance was also placed on the judgment of the Supreme Courtin the case of G.P.Srivastava v. R.K.Raizada and others reported in2000 (3) SCC 54. Learned senior counsel relied on para.7 of the saidjudgment where the provision of Order 9 Rule 13 of the CivilProcedure Code has been discussed. Learned senior counsel relied onthe interpretation of ”sufficient cause” given by the Hon’ble SupremeCourt in that paragraph. The Hon’ble Supreme Court held that thewords “was prevented by any sufficient cause from appearing” must beliberally construed to enable the court to do complete justicebetween the parties particularly when no negligence or inaction isimputable to the erring party. The Supreme Court, further, added that“sufficient cause” for the purpose of Order 9 Rule 13 has to beconstrued as an elastic expression and such expression cannot be putin a strait jacket. Further the Supreme Court expressed an opinionthat “sufficient cause” for non-appearance refers to the date onwhich the absence was made a ground for proceeding ex parte andcannot be stretched to rely upon other circumstances anterior intime. It was, further, held that that if “sufficient cause” is madeout for non-appearance of the party on the date fixed for hearingwhen ex parte order was passed, the party cannot be penalized for hisprevious negligence which has been over looked and condoned earlier.The Court, further, held when the parties approach the Courtimmediately after the ex parte order was passed and within thestatutory 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 theIndian Succession Act, where it has been statutorily provided thatthe probate proceedings, save as thereinafter otherwise provided, areto be regulated, so far as the circumstances of the case permit, bythe Code of Civil Procedure, 1908. Learned senior counsel thereforesubmitted that in the instant case, the provisions of the CivilProcedure Code should govern the exercise of discretion of thelearned Judge while refusing to revoke the grant of probate on thebasis of the application which was filed by the appellant forrevoking the same. 11. Learned senior counsel for the respondent, on the otherhand, submitted that the petition for revocation was not filed underOrder 9 Rule 13 of the Code of Civil Procedure but was filed underSection 263 of the Indian Succession Act. Learned senior counsel https://hcservices.ecourts.gov.in/hcservices/ submitted that Section 263 of the Indian Succession Act (hereinafterreferred to as the Act) provides for revocation of grant for justcause and an explanation to Section 263 has explained whatconstitutes a just cause. Learned senior counsel submitted thatsetting aside an ex parte order does not come within the explanationgiven to Section 263 of the Act. It was, therefore, submitted thatsince the application for revocation has been filed under Section 263of the Act and the case does not fall within the statutory provisionof Section 263 of the Act, the application for revocation was rightlydismissed by the learned Judge. In support of his contention thelearned counsel placed three decisions before this Court, though someother decisions have been referred to in the written note. 12. Reliance was first placed on the judgment of the DivisionBench 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 theDivision Bench held that while Section 263 confers upon a partycertain substantive rights to apply for revocation or annulment ofprobate or letter of administration, Order 9 Rule 13 of the CivilProcedure Code relates to hearing of a case ex parte as well as to anapplication for setting aside an ex parte decree, and these arematters of procedure. In paragraph 17 at page 189 of the saidjudgment, the learned Judges held that in view of the clearprovisions of Sections 268 and 295 of the Indian Succession Act readwith Section 141 of the Code of Civil Procedure, the Court has tofollow the procedure laid down in the Code of Civil Procedure for thepurpose of granting probate but the substantive rights are allgoverned by Section 263 of the Act. Learned Judges have specificallyheld that Section 263 has nothing to do with a case where grant ofprobate which has been made ex parte and an application can be madefor setting aside of that ex parte order by a party who alleges thathe was prevented by sufficient cause from appearing at the hearing.In such a situation, the learned Judges held that “this will begoverned by the provisions of Order 9 Rule 13 of the Code of CivilProcedure and there cannot be any question of conflict between theprovisions of Section 263 and the provisions of the Code of CivilProcedure in this regard”. It is clear from what has been statedabove that the aforesaid decision does not help the contention of therespondent. 13. The other judgment on which reliance has been placed wasalso delivered by a Division Bench of the Calcutta High Court in thecase of Southern Bank Limited Vs. Kesardeo Ganeriwalla and othersreported in AIR 1958 Calcutta 377. In that case, the learned Judgesconsidered Section 263 of the Act and held that Section 263 isexhaustive. No one is disputing the aforesaid principle laid down inthe said judgment. But, in the instant case, where probate has beengranted 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 https://hcservices.ecourts.gov.in/hcservices/ held in the case of Judhisthir Dutta discussed herein above. Thedecision in the case of Southern Bank is not of much assistance tothe respondent. This Court finds that the said decision in the caseof Southern Bank was considered in Judhisthir Dutta (supra). 14. Reliance was also placed on a decision of the learned singleJudge of the Bombay High Court in the case of Smt.Shobha Prakash LalaVs. Nandlal Hotchand Bhatija and Others reported in 1994 (4) Bom CR21. In paragraph 20 of the said judgment also the learned Judge heldthat where the probate proceedings become contentious, thenproceedings are to be processed further like a contested suit byapplying the provisions of the Code of Civil Procedure. In paragraph29 of the judgment it has been held that Section 263 of the IndianSuccession Act provides the grounds upon which the probate oncegranted can be revoked. But, in paragraph 30, it has been held,relying on a decision of the Calcutta High Court in Bimal KanthaSengupta Vs. Sarojini Koner reported in MANU/WB/0067/1985 that theprovisions of Order 9 of the Code of Civil Procedure are applicableto testamentary proceedings, and the judgment in the case ofJudhisthir Dutta (supra) has been referred to as an authority to showthat where an ex parte order of probate has been granted, provisionsof Order 9 Rule 13 can be made applicable. The Bombay High Court heldwhere proceeding has been ex parte the only thing the Court isrequired to consider is whether or not the absence of a party wassufficiently explained while applying for setting aside the ex parteorder. 15. The Court finds that in the instant case the order dated29.02.2008 granting probate was passed on a day when strike wascalled by the lawyers. The appellant’s lawyer, therefore, could notbe 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 forher on a day, when lawyers were not appearing in courts, to arrangefor a lawyer to represent her. In the decision of the Supreme Courtin the case of Ramon Services (supra) it has been held that when amatter is decided ex parte in view of non-appearance of counsel onthe date fixed in view of the strike by the advocates and when anapplication is made for setting aside that ex parte order, the Courtshould set aside the ex parte order inasmuch as sufficient cause ismade in view of the non-appearance of the counsel on the day ofstrike. 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 13application should be considered from the point of view whether onthe date the ex parte decision was passed there was sufficient causefor non-appearance. Past conduct cannot be considered for refusing toset aside an ex parte order. Following the aforesaid principle thisCourt holds that in the instant case sufficient explanation for non-appearacne was given. Though in the application for setting aside theex parte order, Section 263 of the Act is mentioned, but from the https://hcservices.ecourts.gov.in/hcservices/ tenor of the application and the grounds in this appeal, it is clearthat the application is for setting aside the ex parte order underOrder 9 Rule 13 of the Code of Civil Procedure. This is also clearfrom the order under appeal. Just non-mentioning of the saidprovision in the application will not debar the appellant fromgetting the benefit of the said provision since it has been heldaffirmatively by different Courts that Order 9 Rule 13 applies forsetting aside an ex parte order in a probate proceeding consideringthe provisions of Sections 265 and 298 of the Act and Section 141 ofthe Code. 16. In view of the decisions of the Supreme Court, discussedabove, sufficient cause was made out. For the reasons aforesaid, theorder of the learned Judge dated 22.04.2008 is hereby set aside andconsequently, the ex parte order granting probate dated 29.02.2008 isalso set aside. The matter must be adjudicated afresh by the firstCourt.17. But one thing is clear that the appellant has been negligentin pursuit of her remedy. Therefore, this Court must award costs infavour of the respondent to the extent of Rs.10,000/- (Rupees tenthousand only) to be paid by the appellant in favour of therespondent within a period of one month from today. Upon payment ofthe said costs the probate proceeding is restored for de novohearing, and if the appellant has not filed her written statement,she must file it within a period of three weeks from today. If thewritten statement is filed by the appellant within three weeks fromtoday, 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.Sd/-Assistant Registrar/true copy/Sub Assistant Registrarsm/pvToThe Sub Assistant RegistrarOriginal Side, High Court, Madras.+ 1 cc to Mr.Aravind Subramaniam, Advocate SR No.34874+ 1 cc to Mr.P.L.Narayanan, Advocate SR No.34814Delivery Judgment inO.S.A.No.190 of 2008GV(CO)JJM(11.07.08)