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1985 DIGILAW 202 (KER)

SARAMMA THOMAS v. REV. FR. KURIAKOSE

1985-07-04

BHASKARAN NAMBIAR, U.L.BHAT

body1985
Judgment :- 1. This appeal is directed against the order passed by the District Judge, Ernakulam dismissing I.A. 403/83 in O.P. 143/1980. 2. Appellants herein filed O.P. 143/1980 under S.276 of the Indian Succession Act (for brevity'the Act') seeking issue of letters of Administration in respect of will dated 15-9-1976 said to have been executed by one Anna who died on 7-2-1980. They were represented by Advocate Sri. R.C. Plappally. The petition was opposed by the respondents herein. There was a move for settlement of the dispute between the parties and the case was being adjourned for settlement or enquiry. On 21-11-1983 on the ground that appellants and their counsel were absent, the O.P. was dismissed for default. Appellants filed I.A. 403/83 through Advocate Sri. Easwara Iyer seeking restoration of the O.P. under Order IX R.9 of the Code of Civil Procedure (for brevity 'the Code') praying that the O.P. may be restored to file. The petition was dismissed and hence this appeal. 3. It is agreed that the parties were attempting settlement which ultimately did not materialise. At that stage, appellants engaged another advocate to prosecute the case. The definite averment in I.A. 403/83 was that junior counsel of the newly engaged advocate appeared before the District Judge and prayed for adjournment. But the request was rejected and the O.P. was dismissed. This averment was not specifically contradicted by the respondents. We are of opinion that the District Judge was not justified in dismissing the petition. He should have considered allowing the petition on suitable terms. 4. Learned counsel for the respondents contends that the provisions of Order IX R.9 of the Code will not apply to proceedings under the Act and hence appellants-had no right to file such an application and the District Judge would have no jurisdiction to grant the relief prayed for. 5. Our attention has been invited to a number of decided cases. Learned counsel for the respondents contends that the provisions of Order IX R.9 of the Code will not apply to proceedings under the Act and hence appellants-had no right to file such an application and the District Judge would have no jurisdiction to grant the relief prayed for. 5. Our attention has been invited to a number of decided cases. In Ramani Debi v. Kumud Bandhu Mukherjee (1910 (VII) Indian Cases 126), the Calcutta High Court after considering S.13,102 and 103 of the Civil Procedure Code, 1882, took the view that if an application by an executor for probate of a will has been dismissed for default under S.102 of that Code (corresponding to Order IX R.8 of the Code) that will not debar a second application f6r probate of the same will and S.103 of that Code (corresponding to Order IX R.9 of the Code) will not apply. This view has been followed by the Madras High Court in Ganshamdoss Narayandoss v Saraswathi Bai & ors. (AIR 1925 Mad. 861), the Calcutta High Court in Suriya Kumar v. Jaynarayan (AIR 1926 Calcutta 1057), the Patna High Court in Gorakh Ahir v. Jamuna Ahir (AIR 1943 Patna 281) and the Bombay High Court in Sadashivrao v. Anandrao (AIR 1973 Bombay 284). 6. However, a contrary view has been taken by the Madras High Court in Rallabandi Veeramma v. Rallabandi Subba Rao and another (AIR 1919 Madras 112), the Calcutta High Court in Sarat Krishna Bose v. Bisweswar Mitra (AIR 1927 Calcutta 534), Lahore High Court in Manohar Lal and others v. Rup Lal and others (AIR 1936 Lahore 712). Allahabad High Court in Raja Ram v. Lakshmi Narain (AIR 1958 Allahabad 149) and the Patna High Court in Iribeni Kuer v. Shankar Tiwari (AIR 1971 Patna 391). 7. We will now have a look at the relevant provisions of law. S.141 of the Code lays down that Deprocedure provided in the Code in regard to suit shall be followed as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Explanation to the section makes it clear that the expression 'proceedings' includes proceedings under Order IX of the Code but does not include any proceeding under Art.226 of the Constitution of India. 8. Part IX of the Act contains provisions relating to probate and letters of Administration. Explanation to the section makes it clear that the expression 'proceedings' includes proceedings under Order IX of the Code but does not include any proceeding under Art.226 of the Constitution of India. 8. Part IX of the Act contains provisions relating to probate and letters of Administration. Chapter IV of Part IX deals with the practice in granting and revoking probates and letters of Administration. Jurisdiction in this behalf is vested in the District Judge concerned under S.264 of the Act. S.266 states that the District Judge shall have the like powers and authority in relation to the granting of prolate and letters of administration and all matters connected therewith as are by law vested in him in relation to any civil suit or proceedings pending in his Court. S.288 states that the proceedings of the Court of the District judge in relation to the granting of probate and letters of administration shall, save as provided otherwise in the other provisions of the Act, be regulated, so far as the circumstances of the case permit, by the Code. S.276.278, 279, 280 and 281 relate to the form and contents of petitions to be filed under the Act. 9. Powers of District Judge exercising jurisdiction in this behalf are deal with in S.283 of the Act. S.284 and S.285 prescribe how caveats against grant of probate or letters of Administration are to be lodged and dealt with. S.295 states that in contentious cases, proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code in which the petitioner shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant. 10. The High Court of Kerala has framed rules relating to proceedings under the Act. The Rules are called the Indian Succession Rules (Kerala); 19(8 R.20 states, inter alia, that if the petitioner fails to proceed with the petition or to take out the grant, the court shall give notice in writing of such default to the Administrator General who may apply to the Court for an order that the petition be dismissed and that he may be at liberty to apply for grant of letters of Administration. R.26 states that proceedings which arc contentious, shall be ordered to be numbered as suit in which the petitioner shall be the plaintiff and the caveator the defendant and the petition deemed as plaint. The procedure in such suit shall take, as nearly as may be, according to the provisions of the Code. R.30 states that the rule shall not deviate from the provisions of the Administrators General Act, 1963 and the Rules therein. 11. The Administrators General Act. 1963 provides for appointment by the State Government of an Administrator General for the State and lays down his powers and duties. In certain circumstances, the Administrator General has right to apply to the High Court for administration of the estate of the deceased. 12. The above provisions would clearly indicate that the proceedings of the District Judge in relation to the grant and all matters connected therewith shall be regulated by the provisions of the Code except to the extent otherwise provided by the Act. In exercising such jurisdiction, the District Judge shall be competent to exercise the power and authority vested in him under the Code in relation to any civil suit or proceeding. The District Judge in relation to civil suits or other proceedings in bis Court is certainly competent to exercise jurisdiction under the provisions of R.9 and 13 of Order IX of the Code. This jurisdiction can be exercised by him even in relation to proceedings under Part IX of the Act by virtue of the combined effect of S.141 of the Code and S.266, 268 and 295 of the Act. This matter is further clarified by the rules referred to above. We therefore hold that provisions of Order IX of the Code are applicable to proceedings under Part IX of the Act and the District Judge has jurisdiction to set aside the dismissal for default of an application for probate or letters of Administration and to restore it to file. 13. Let us now examine the reasoning in Ramani Debi's case and the other decisions following that case. We are in this case not concerned with the question whether a second application for probate or letters of Administration would lie on the dismissal of an earlier application for default. That does not arise on the facts of the case. 13. Let us now examine the reasoning in Ramani Debi's case and the other decisions following that case. We are in this case not concerned with the question whether a second application for probate or letters of Administration would lie on the dismissal of an earlier application for default. That does not arise on the facts of the case. The main reason suggested in those decisions for overruling the applicability of the provisions of Order IX in such a case is that such a proceeding is not a suit and there is no cause of action to be adjudicated upon. With great respect, we are unable to agree with this view. The matter is beyond all controversy at least in so far as contentious proceedings are concerned. The Act contemplates a petition to be filed or caveat to be lodged. When a caveat is lodged, the District Judge is bound to treat the proceedings as a suit, the petition as a plaint, petitioner as the plaintiff and the objector as the defendant.' While it is true that the proceeding is not actually a suit as contemplated by the Code, for all practical purposes, it must be deemed to be a suit. That is the clear consequence of S.295 of the Act and R.26 of the Rules. It is true that ordinarily judgment in a probate case or a case relating to letters of Administration is treated as a judgment in rem. But it is equally clear that a contentious proceeding like this involves a contest between the rival parties raising conflicting contentions which require decision of the District Judge. A suit is always based on a cause of action. Cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is a bundle of facts which taken with the law applicable to them gives the plaintiff a right of relief against the defendant. Viewing the concept of cause of action in its broadest sense, it cannot be said that there is no cause of action at all involved in a proceeding under Part IX of the Act. Further the proceedings are essentially of a civil nature. Provisions of the Act referred to above viz., S.266 and 268 require that the powers, authority and procedure of the Dist. Further the proceedings are essentially of a civil nature. Provisions of the Act referred to above viz., S.266 and 268 require that the powers, authority and procedure of the Dist. Judge shall be in consonance with the provisions of the Code in so far as the circumstances of the case permit and save as otherwise provided in the Act. We do not find any circumstances warranting exclusion of the operation of the provisions of Order IX to cases under part IX of the Act. We find no other provisions of the Act which necessitate such exclusion. For these reasons, with great respect, we are unable to follow the reasoning given in Ramani Debi's case and the decisions, which followed that case. As we have already indicated above, it is unnecessary for us in this case to consider whether a second application will or will not lie. It is sufficient for us to hold that the power under R.9 of Order IX C.P.C. is available to be exercised by the District Judge in the case of a petition dismissed for default. We would also indicate that the learned District Judge has not followed the procedure prescribed in R.20 of the Rules while dismissing the petition for issue of letters of Administration. In the result, we dispose of the appeal as follows: 1. The appeal will stand allowed and the order passed by the District Judge in I.A. 403/83 stand set aside and I.A. 403/83 will stand allowed on the appellants paying the respondents a sum of Rs, 250/-as costs within two weeks from today. 2. In the event of failure of the appellants to fulfil this condition, the appeal will stand dismissed with costs. Dismissed.