Civil revision challenging refusal to grant time to file objections and recall an ex parte order in a probate case. The court held the revisionist was not a party after earlier impleadment applications were finally rejected, dismissal is allowed.
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Court No. - 9
Case :- CIVIL REVISION No. - 346 of 2014
Revisionist :- Rajeshwar Gupta Opposite Party :- Suresh Kuamr Kukreja And 2 Ors. Counsel for Revisionist :- A.K. Mehrotra Counsel for Opposite Party :- Shyam Shankar Mishra,Rakesh Chandra
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the revisionist as also counsel for the opposite party.
This civil revision arises out of probate Case No. 71 of 2010 filed by the opposite party for probate of will dated 07.06.2006 and challenges four orders, namely, the orders dated 07.07.2011, 22.01.2013, 07.01.2014 and 19.02.2014.
The facts of the case briefly stated are that the opposite party filed the aforementioned probate case for probate of a will executed by one Anandi Devi in favour of the plaintiffs.
In these proceedings, on 03.02.2011, the revisionist filed application No. 11-Ga for time to file objections.
On 15.04.2011, the revisionist also filed an application 16-Ga under Order 1, Rule 10 CPC for impleadment as an opposite party in the probate case.
The court vide order dated 07.07.2011 rejected both the applications.
On 25.04.2012, the revisionist filed an application for recall of the order dated 07.07.2011 whereby his applications 11-Ga and 16Ga were rejected. The court vide order dated 22.01.2013 rejected the said application.
In the affidavit filed along with this revision, it has been stated that the revisionist was not aware of the order dated 22.01.2013.
Subsequently, by the order dated 07.01.2014 the probate case was directed to proceed ex parte as the persons impleaded as respondents therein, failed to appear.
The applicant, on 03.02.2014, filed an application under Order 9, Rule 7 CPC read with Section 151 CPC, for recall of the order dated 07.01.2014 along with a prayer for in liberty to file an
objection and evidence in the probate case.
This application has been rejected by the order dated 19.02.2014. Hence this revision.
The order dated 19.02.2014, whereby, the application of the revisionist, No. 39-Ga has been rejected, has been passed on the reasoning that earlier applications for time to file an objection and for impleadment as a defendant in the suit, being applications 11-Ga and 16-Ga had already been dismissed, as none has appeared to press them. The application for recall of this order had also been dismissed. The court, therefore, opined that the application paper No. 39-Ga under Order 9, Rule 7 CPC read with Section 151 CPC for recall of the order dated 07.01.2014 to proceed ex parte was not an order passed against the revisionist as he was not a party to the proceedings. Therefore, his application was not maintainable.
Insofar as this order dated 19.02.2014 is concerned, I do not find any illegality therein.
It is not disputed that the earlier applications filed by the applicant revisionist had been dismissed, including his application for impleadment. He was, therefore, not a party to the proceedings, at any stage. He could not have maintained the application under Order 9, Rule 7 CPC nor he could be granted time for filing an objection or adducing evidence, once his impleadment application has been rejected and the order has attained finality in the year 2013.
Although it is sought to be contended that in probate proceedings a person having even an iota of interest is liable to be heard as has been held in the various judgement cited by the counsel for the revisionist, this Court finds that the cases aforesaid are clearly distinguishable on facts because in none of them an impleadment application under Order 1, Rule 10 CPC, have been rejected prior in time, and the order in that regard has attained finality, not having been challenged.
Although counsel for the revisionist states that the orders rejecting the impleadment application as also the order whereby an application for recall of the said order had been rejected are also under challenge in this revision, this Court finds that this is more of an argument of desperation. The order in this regard, has been passed in January, 2013. The instant revision has been filed in May, 2014, more than one and half years, thereafter. Challenge to these order is
barred by time and there is no explanation as to the reason why these orders were not challenged earlier and were allowed to be attain finality.
The court below, while passing the order dated 19.02.2014, has observed that all earlier applications had been dismissed as none had appeared to press them. The only explanation offered for this is that the revisionist was never informed by his counsel about the orders.
This explanation, in my considered opinion is not liable to be accepted. The litigant is necessarily required to be vigilant as regards his rights and it cannot be accepted that after having filed an application, he will not make any enquiry regarding its outcome.
In the facts and circumstances and for the reasons given above, no ground for interference is made out. The revision is totally devoid of substance as the orders impugned therein, suffer from no jurisdictional error warranting interference.
The revision is accordingly dismissed.
Order Date :- 12.1.2018 Priyanka
2 issues framed by the court
Whether a revisionist maintain an application under Order 9 Rule 7 CPC when earlier impleadment applications were rejected and became final.
Whether failure to challenge earlier orders due to alleged lack of awareness by counsel is a valid ground for revision.
3 provisions across 1 enactments
Rajeshwar Gupta
Suresh Kuamr Kukreja
Anjani Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
