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2019 DIGILAW 1365 (JHR)

Basudeo Lahiri v. Rama Lahiri

2019-07-30

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 23.02.2019 (annexure-8) passed in Probate Case No.03/2013 (Title Suit No.05/2014) by which the petition filed under Order 23 Rule 1 of the C.P.C. for withdrawal of the suit, has been rejected. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that he has filed a probate case being Probate Case No.03/2013 for grant of probate in his favour in respect of the registered Will dated 05.04.2000 executed by one Nil Krishna Lahiri. The respondent nos.1 to 11 have appeared in the aforesaid probate case and have also filed reply raising no objection for grant of probate in favour of the petitioner. However, the other respondents have objected and contested the probate case, therefore, the probate case has been converted into Title Suit No.05/2014. The petitioner has filed a petition under Order 23 Rule 1 of the C.P.C. on 02.04.2018 and in course of pendency of the aforesaid petition, the respondent nos.1 to 8 have filed a petition on 24.08.2018 under Order 23 Rule 1-A of the C.P.C. for transposing them as plaintiff and the petitioner as the defendant in the suit. The petitioner has filed rejoinder to the said petition and the trial Court after dealing with the petition under Order 23 Rule 1 as also under Rule 1-A has passed the order on 23.02.2019 rejecting the petition filed for withdrawal of the probate case and transposing the defendants as plaintiffs by taking recourse of Order 13 Rule 1-A, against which, the present writ petition has been filed invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India. 3. Mr. Pradeep Kr. Deomani, learned counsel appearing for the petitioner has vehemently argued that if the petitioner does not intend to proceed with the proceeding of the probate case and to that effect a petition has been filed which confers power upon the trial Court to allow the withdrawal or abandon part of the claim, the petitioner cannot be compelled to contest the suit, therefore, while not allowing the withdrawal of the probate case, the trial Court has committed gross illegality. He has further argued by referring to the infirmity committed in the impugned order by transposing the defendants as plaintiffs by taking recourse of Order 23 Rule 1-A of the C.P.C., since according to him, respondent nos.1 to 8 has got no interest over the said property in view of death of one of the legatee before the Will having been probated. According to him, the fact of one of the legatee, since is not in dispute, therefore, the trial Court ought to have taken into consideration these aspects of the matter by holding that respondent nos.1 to 8 have got no interest over the property. 4. This Court having heard the learned counsel for the petitioner and gone across the finding recorded in the impugned order. 5. This Court before entering into the legality and propriety of the impugned order, thinks it fit and proper to deal with the provision of Order 23 Rule 1 as also Rule 1-A of the C.P.C. which reads as hereunder:- “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. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) 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 permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule(3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. When transposition of defendants as plaintiffs may be permitted.-Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.” 6. It is evident from the aforesaid provision as contained under Order 23 Rule 1 which confers power upon the Court to allow the withdrawal of suit or abandonment of part of claim, if any petition at any time after the institution of a suit to that effect has been filed. Sub-rule (2) thereof provides that such application is to be supported by an affidavit while sub-rule (3) provides about the permission to file fresh suit with the leave of the Court. This provision provides that the suit can be withdrawn on an application of a petition filed by the plaintiff at any time after institution. 7. Sub-rule (2) thereof provides that such application is to be supported by an affidavit while sub-rule (3) provides about the permission to file fresh suit with the leave of the Court. This provision provides that the suit can be withdrawn on an application of a petition filed by the plaintiff at any time after institution. 7. Order 23 also contains a provision as contained under Rule 1-A which provides that where a suit is withdrawn or abandoned by a plaintiff under rule 1, and the defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. It is evident from the provision as contained under Order 23 Rule 1 of the C.P.C., the plaintiff is given a right to abandon his claim with a leave of the Court and also withdraw his claim. The Court, while granting permission to the plaintiff to withdraw the suit, is required to be satisfied with the reasons of such withdrawal. There may be some formal defects in the suit and there are sufficient grounds for allowing the plaintiffs to institute fresh suit. Further, the Court can grant permission to withdraw the suit giving liberty to institute fresh suit. Sub rule (5) of Rule 1 of Order XXIII of the C.P.C, however, lays down that nothing is rule 1 of Order XXIII shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw the suit without the consent of other plaintiffs. Under Rule 1-A, when plaintiff withdraws of abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order 1 it he shows substantial question to be decided against other defendants. This Court in the light of the aforesaid provision of law has examined the legality and propriety of the impugned order. 8. Under Rule 1-A, when plaintiff withdraws of abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order 1 it he shows substantial question to be decided against other defendants. This Court in the light of the aforesaid provision of law has examined the legality and propriety of the impugned order. 8. The admitted facts of this case is that a legatee has been created by one Nil Krishna Lahiri on 05.04.2000 in favour of the petitioner and to probate it, the petitioner has filed a probate case by impleading the respondent nos.1 to 11 as party to the suit proceeding in which they have appeared and supported the contents of the Will but some of the respondents have objected, therefore, the probate case has been converted into the title suit being Title Suit No.05/2014. The petitioner, thereafter, has filed a petition under Order 23 Rule 1 of the C.P.C. for withdrawal of the suit but respondent nos.1 to 8 have also filed a petition on 24.08.2018 invoking the jurisdiction of the Court as conferred under Order 23 Rule 1-A of the C.P.C. and the trial Court by taking into consideration the petition filed under Order 23 Rule 1 as also Rule 1-A filed by the respondent nos.1 to 8 has passed an order by not granting liberty to withdraw the case on the ground that the same will result in giving go-by to the interest of the respondent nos.1 to 8 who have waited for transposing the defendants as plaintiffs to the suit. 9. It is the admitted case of the petitioner that the respondent nos.1 to 8, who are the legal heirs and successor of one of the legatee in whose favour the Will was executed by one Nil Krishna Lahiri on 05.04.2000. The petitioner’s contention is that after the death of one of the legatee, the Will has lost its force and the trial Court would not have passed the order for transposing so far as it relates to respondent nos.1 to 8 who are the legal heirs and successor of one of the legatee and therefore, the prayer has been made to interfere with the impugned order at this stage by allowing the probate case to be withdrawn and by eradicating the interest of respondent nos.1 to 8. 10. 10. This Court after going across the petition filed by the plaintiff under Order 23 Rule 1 of the C.P.C. has found that no such reason for satisfaction of the trial Court allowing the permission to withdraw the probate case has been assigned as has been reflected in the impugned order, save and except, the assertion made therein that the plaintiff does not want to probate with the case filed for grant of probate with respect to the Will dated 05.04.2000 and therefore, in absence of specific reason for withdrawal, the Court while refusing the prayer for withdrawal of the probate case considering the condition as stipulated under Order 23 Rule 1 of the C.P.C., cannot be said to have committed any illegality. So far as the order passed in petition filed under Order 23 Rule 1-A, the same has been filed for transposing the defendant nos.1 to 8 as plaintiff. The contents of the Will has been appreciated, wherefrom it clearly transpires that the testator Nil Krishna Lahiri executed a registered Will in favour of Basudeo Lahiri, the petitioner/plaintiff and Kartik Chandra Lahiri, husband of respondent no.1 namely Rama Lahiri and father of the respondent nos.2 to 8 and as such, it is clear from the Will dated 05.04.2000 that the respondent nos.1 to 8 have substantive right over the property under Will which was put for want of grant of probate by one of the legatee namely Basudeo Lahiri, the petitioner/plaintiff. It further transpires from the record that the respondent nos.1 to 8 have filed no objection as they have interest in the property under Will but subsequently the petitioner has expressed his desire to withdraw the probate case proceeding ignoring the interest of respondent nos.1 to 8 in the property under the Will for which, they were also entitled in case, the probate is granted after adjudication of the suit. 11. The similar issue fell for consideration before the Hon’ble Patna High Court in the case of Sushila Devi Vs. 11. The similar issue fell for consideration before the Hon’ble Patna High Court in the case of Sushila Devi Vs. Bishwanath Ram, reported in 1992 (1) PLJR 495 , wherein it has been held that Order XXIII Rule 1(1) and 1A read with Sections 268 and 295 of Indian Succession Act, 1925 empowers the Court to reject the application of propounder in a probate proceeding for withdrawal of the suit and Court has also authority for transposition of defendants as plaintiff by taking recourse of Order XXIII Rule 1-A. The relevant proposition has been laid down by the Hon’ble Andhra Pradesh High Court in the case of Rapolu Yadagir Vs. Smt. Rapolu Lakshmamma and Ors., reported in AIR 2003 Andhra Pradesh 300 at paragraph-14 which reads as hereunder:- “14. The suit was filed for partition. There is no much difference in the plaintiffs and defendants. Plaintiff is a defendant and defendant is a plaintiff. At any stage, subject to certain restrictions, if plaintiff abandons the claim, the defendants can be transposed as plaintiff. Under Rule 1 of Order XXIII of CPC, plaintiff is given a right to abandon his claim with the leave of the Court and also withdraw his claim. The Court, while granting permission to the plaintiff to withdraw the suit, is required to be satisfied with reason of such withdrawal. There may be some formal defects in the suit and there are sufficient grounds for allowing the plaintiffs to institute fresh suit. Further, the Court can grant permission to withdraw the suit giving liberty to institute fresh suit. Sub rule (5) of Rule 1 of Order XXIII of the C.P.C, however, lays down that nothing is rule 1 of Order XXIII shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw the suit without the consent of other plaintiffs. Under Rule 1-A, when plaintiff withdraws of abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order 1 it he shows substantial question to be decided against other defendants.” 12. Under Rule 1-A, when plaintiff withdraws of abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order 1 it he shows substantial question to be decided against other defendants.” 12. In a contested case the application which has been registered as title suit if the propounder wants to withdraw from the case or want to abandon it, does not take any step and if any defendant who claims the interest under the Will, the Court may not in such a situation allow the propounder to withdraw the suit or to abandon it or dismiss the suit for default, if the person or any of the person claiming the interest in the property under the Will applies to Court to allow him to prosecute the case, the Court may in such a situation take recourse to Order 1 Rule 10 of the C.P.C. and transpose any such defendant as plaintiff and transpose the plaintiff as a defendant. 13. The trial Court after taking into consideration the aforesaid ratio and perusing the Will in question which clearly transpires that the Will in question was executed by Nil Krishna Lahiri in favour of petitioner/plaintiff Basudeo Lahiri and also in favour of Kartik Chandra Lahiri whose descendants were impleaded as respondents/defendants in the petition/suit by the petitioner/plaintiff Basudeo Lahiri and therefore, the respondent nos.1 to 8 have got valuable interest in the property under Will and as such the leave sought for withdrawal of the case if allowed which will result in eradication of interest of respondent nos.1 to 8. The trial Court keeping the aforesaid aspect of the matter has rejected the withdrawal petition filed by the petitioner and passed an order on petition filed by the respondent nos.1 to 8 for their transposition as petitioner/plaintiff and while doing so, no illegality has been committed warranting any interference by this Court under Article 227 of the Constitution of India. 14. Learned counsel for the petitioner, although has raised an issue raising the provision of Sections 105 and 106 of the Indian Succession Act, 1925. 14. Learned counsel for the petitioner, although has raised an issue raising the provision of Sections 105 and 106 of the Indian Succession Act, 1925. The said aspect of the matter has not been agitated in the petition filed by the petitioner as would appear from it as contained under annexure-3, wherein save and except the ground has been agitated as reflected in para-4 that the petitioner does not want to proceed with the present probate for grant of probate with respect to the Will dated 05.04.2000 and as such, this Court is not taking the cogent averment made at paragraph 17 to the writ petition, for the reason that in exercise of power conferred under Article 227 of the Constitution of India which is a revisional jurisdiction conferred to the High court, the legality and propriety of the order is to be tested on the basis of the fact placed before the trial Court basis upon which the order has been passed by the trial Court. Further for the reason that the question of testing the illegality under its revisional jurisdiction can only be appreciated if the fact would be agitated before the concerned trial Court for its appreciation, having not done so, the Court sitting under Article 227 of the Constitution of India is not supposed to allow the party to improve the pleading. 15. In view thereof, the order impugned suffers from no infirmity warranting any interference by this Court under Article 227 of the Constitution of India. 16. Accordingly, the writ petition fails and it is dismissed.