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2016 DIGILAW 185 (CAL)

Probal Chatterji v. Madhumita Ganguli

2016-02-21

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya, J. 1. This First Miscellaneous Appeal is directed against an order being no. 17 dated 14th June, 2016 passed by the learned Additional District Judge, 16th Court at Alipore, in Original Suit No. 2 of 2015 at the instance of the executor/propounder of the will/plaintiff. 2. By the impugned order, the probate proceeding which was made contentious after the defendant no. 1 filed objection, was dismissed by the learned Trial Judge under Order 11 Rule 21 of the Civil Procedure Code for non-compliance of the order passed by the learned Trial Judge whereby the plaintiff was directed to answer some interrogatories. 3. The legality of the said order is under challenge in this appeal. 4. Let us now consider as to how far the learned probate court was justified in passing the said impugned order in the facts of the present case. 5. On an application filed by the defendant no. 1 under Order 11 Rule 1 of the Civil Procedure Code, the Plaintiff/Appellant was directed to give answer to the interrogatories as mentioned in the schedule of the said application. 6. Being aggrieved by the said order, the Plaintiff/Appellant filed an application under Article 227 of the Constitution of India before this Hon'ble Court. The said revisional application was disposed of with certain modification of the order impugned therein. 7. The legality of the said order was challenged by the Plaintiff/Appellant by filing a Special Leave Petition before the Hon'ble Supreme Court. The Special Leave Petition which was filed by the Plaintiff/Appellant was not in order. There were some defects in it. The defects in the said Special Leave Petition were rectified by the petitioner therein and ultimately the said Special Leave Petition was posted for hearing before the Hon'ble Supreme Court. 8. However, before the said Special Leave Petition was taken up for hearing by the Hon'ble Supreme Court, the suit itself was dismissed by the learned Trial Judge under Order 11 Rule 21 of the Civil Procedure Code. 9. Considering the dismissal of the suit by the learned Trial Judge, the Hon'ble Supreme Court dismissed the said Special Leave Petition without entering into the merit of the said Special Leave Petition. 10. Thus, the order which was passed by this Hon'ble Court in revision attained its finality. 11. 9. Considering the dismissal of the suit by the learned Trial Judge, the Hon'ble Supreme Court dismissed the said Special Leave Petition without entering into the merit of the said Special Leave Petition. 10. Thus, the order which was passed by this Hon'ble Court in revision attained its finality. 11. Fact remains that despite repeated adjournments were granted to the Plaintiff/Appellant to answer the interrogatories which were allowed by the learned Trial Court with some modifications by this Hon'ble Court in its revisional jurisdiction, the Plaintiff/Appellant did not answer those interrogatories. This prompted the defendant no. 1 to invite the learned Trial Court by filing an application Order 11 Rule 21 of the Civil Procedure Code to dismiss the suit of the plaintiff for non-compliance of the order of the Court. 12. The learned Trial Judge after taking into consideration the past conduct of the Plaintiff/Appellant and also his failure to give answer to the interrogatories within the time fixed by the court, dismissed the suit for non-compliance of the court's order under Order 11 Rule 21 of the Civil Procedure Code. However, while doing so, the learned Trial Court did not arrive at any finding as to whether withholding of giving the answer to the interrogatories on the part of the plaintiff was willful and/or deliberate or not. 13. Though Mr. Nilay Sengupta, learned advocate, appearing for the respondent no. 1 supports the impugned order passed by the learned Trial Court by submitting that withholding of giving answer to those interrogatories was willful on the part of the plaintiff/appellant as he disclosed before the learned Trial Court that he was not bound to give answer to those interrogatories, but we do not find any such reflection in the order impugned. The context in which such steps for dismissal of the suit can be taken by the court under Order 11 Rule 21 of the Civil Procedure Code was considered by the Hon'ble Supreme Court in the case of M/s. Babbar Sewing Machine Company -vs- Tirlok Nath Mahajan, reported in AIR 1978 S.C. 1436 wherein it was held as follows : Para - 20 : "It is settled law that the provisions of Order XI Rule 21, should be applied only in extreme cases where obstinacy or contumacy on the part of the defendant or a willful attempt to disregard the order of the court is established. As pointed out by Lord Russell C.J. in Reg. - vs - Senior, (1899) 1 QBD 283 and affirmed by Cave L.C. in A.B. Tamboli v. G.I.P. Railway, ILR 52 Bom 169 : ( AIR 1928 PC 24 ) "wilfully" means that": "the act is done deliberately and intentionally not by accident or inadvertence, but so that the mind of the person who does the act goes with it." On reading the impugned order, we are of the view that this test has not been applied by the learned Trial Judge while dismissing the probate suit under Order 11 Rule 21 of the Civil Procedure Code. However, at the same time we find that the interrogatories have not been answered by the plaintiff/petitioner. We have examined the interrogatories, which he was called upon to answer by this Hon'ble Court in its revisional jurisdiction. 14. In our view, the interrogatories which the Plaintiff was directed to answer, excepting interrogatory mentioned in Sl. No. 12, are very relevant so far as the administration of the estate of the deceased by the executor during the pendency of the probate proceeding. As such, the Plaintiff/Appellant being the executor cannot avoid giving reply to those interrogatories. 15. This conclusion we draw, particularly in view of the submission made by Mr. Soumya Chkraborty, learned senior counsel, appearing for the plaintiff/appellant that rightly or wrongly under some legal advice, the plaintiff and the defendant no. 2 withdrew some money from the savings bank accounts and/or some other accounts which were held by the testator jointly with them before initiation of probate proceeding. 16. Mr. Chakraborty, learned senior counsel, also in his usual fairness submits that his client will secure the money which was so withdrawn from the accounts held by the testator jointly with his client and the defendant no. 2, in any form as the Court desires. 17. Considering such submission of Mr. Chakraborty, learned senior counsel, we dispose of this appeal by setting aside the order impugned with a further rider that the plaintiff/appellant will give answer to those interrogatories which were allowed by this Hon'ble Court while disposing of the civil revision application as aforesaid, excepting the interrogatory as mentioned in Sl. No. 12, positively within 24th January 2017, without fail. 18. No. 12, positively within 24th January 2017, without fail. 18. It is made clear that the time limit which is fixed for giving answer to the interrogatories by the plaintiff will be regarded as peremptorily fixed by this Court and under no circumstances the time limit will be further extended by the Court. 19. It is further clarified that in the event the order is not complied with by the plaintiff/appellant within the time as fixed above, the impugned order which was passed by the learned Trial Judge will stand revived and the order of dismissal of the suit in that case will be maintained. 20. We further direct the plaintiff/appellant to furnish security by way of bank guarantee to the equivalent amount which was withdrawn by the plaintiff and the defendant no. 2 to the satisfaction of the learned Trial Court by 21st January, 2017. 21. The prayer for transfer of the probate proceeding from the court where it is now pending at Alipore to any other court cannot be allowed by this Court as this Court has no determination to take up any application under Section 24 of the Civil Procedure Code. 22. It is, however, made clear that in the event any of the parties applies seeking transfer of the said proceeding to any other court before the learned District Judge or before the appropriate Bench of the High Court having determination, such prayer will be considered in accordance with law, notwithstanding, we have not allowed such prayer for transfer of the probate proceeding from the court where it is pending to any other court within the judgeship of District Judge at Alipore. 23. In the event any occasion arises for disposal of the probate proceeding on merit in pursuance of the order passed hereinabove, the learned probate court will make all endeavour to dispose of the probate proceeding on merit as expeditiously as possible without granting any unnecessary adjournment to any of the parties. 24. The appeal and the application both are disposed of. 25. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties as expeditiously as possible.