Bombay High Court
Arvind Nathubhai Dattani vs Maniben Karsandas Dattani & Anr on 19 December, 2011
Bench: D.G. Karnik
1 NMT No.75/11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO.75 of 2011
IN
TESTAMENTARY SUIT NO.59 of 2010
IN
TESTAMENTARY PETITION NO.227 of 2010
Arvind Nathubhai Dattani ... Plaintiff
versus
Maniben Karsandas Dattani & Anr ... Defendants
ig ...
Mr. Bhavin Gada with Ms.Yogini Gada i/b Harakchand & Co. for the
plaintiff.
Mr.S. Wasoodew i/b M/s.M.P. Vashi & Associates for defendant no.4
CORAM : D.G. KARNIK, J
DATED : 19th December 2011
ORAL ORDER:
1.
By this motion,the plaintiff seeks that after condoning the
delay in filing out the motion, this court should set aside the order
dated 18 January 2011.
2. In my view, the suit of the plaintiff has been dismissed on
merits after the court proceeded under explanation to Rule 2 of
Order 17 of the Code of Civil Procedure (for short "the Code"). As
such, the appropriate remedy of the plaintiff is to file an appeal
against the decision. The remedy by way of a notice of motion
under Order 9 Rule 9 of the Code is misconceived for the reasons
indicated below:
3. In a testamentary suit filed by the plaintiff for obtaining
probate to the alleged will of the testator, the evidence of the
plaintiff was recorded on 16 April 2009. The affidavit of the
attesting witness was however not filed. The plaintiff stated that
the attesting witness was unable to come and applied for witness
summons. The witness summons was issued but was not served by
the plaintiff. The returnable date of the witness summons was
extended upto 21 October 2010. Even then, the witness summons
was not served. Plaintiff did not adduce the evidence of any other
person. When the matter was called out, the plaintiff was absent.
The Judge thereafter dismissed the suit by an order dated 18
January 2011. Perusal of the order dated 18 January 2011 clearly
shows that the suit was not dismissed in default under Order 9 Rule
8 of the Code but the suit was dismissed on merits. The court
considered the evidence adduced by the plaintiff and observed: "the
evidence of the plaintiff alone is of no consequence. Validity of the
will cannot be seen without the evidence of the attesting witness".
The court came to the conclusion that the will was not proved by
the plaintiff and therefore dismissed the suit. It is this order which
is sought to be set aside by the present motion.
4. Order 17 Rule 2 of the Code thus reads thus:
2. Procedure if parties fail to appear on day fixed-
Where, on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to appear,
the Court may proceed to dispose of the suit in one of
the modes directed in that behalf by Order IX or make
such other order as it thinks fit.
(Explanation - Where the evidence or a substantial
portion of the evidence of any party has already been
recorded and such party fails to appear on any day to
which the hearing of the suit is adjourned, the Court
may, in its discretion proceed with the case as if such
party were present)
5. The substantive part of Rule 2 of Order 17 says that when on
any day to which the hearing of the suit is adjourned, the parties or
any of them fail to appear, the court may proceed to dispose of the
suit in one of the modes directed in that behalf by Order 9 or make
such other order as it thinks fit. When the plaintiff remains absent,
the suit can be dismissed under Rule 8 or Rule 3 of Order 9
depending upon whether the defendant is present or not. However,
explanation to Rule 2 of Order 17 creates an exception and provides
that where the evidence or a substantial portion of the evidence of
any party has already been recorded and such party fails to appear
on any day to which the hearing of the suit is adjourned, the court
may in its discretion proceed with the case as if such party were
present. Explanation to Rule 2 of Order 17 confers a discretion on
the court to ignore the absence of the party on a given date and
proceed with the hearing of the suit as if the party was present
provided that the party who is absent had adduced its evidence or
substantial portion of its evidence. The power to proceed under the
explanation to Rule 2 by ignoring absence of the party can be
exercised if the court is satisfied that (a) the substantial portion of
the evidence of any party has already been recorded (b) such party
has failed to appear on any day and (c) the date is the one to which
the hearing of the suit is adjourned. In the present case, the
plaintiff was absent when the suit was called. Therefore, condition
(b) is satisfied. On 18 January 2011, the case was fixed for hearing
and therefore, condition (c) is satisfied. The only question is
whether condition (a) is fulfilled. Condition (a) is that the
substantial portion of the evidence of the party must have been
recorded. In the present case, it appears that the court came to the
conclusion that the substantial portion of the evidence of the
plaintiff was recorded inasmuch as it considered the evidence of the
plaintiff and then held that the will was not proved.
6. Relying upon the decision of the Supreme Court in
B.Janakiramaiah Chetty Vs. A.K. Parthasarthi & Ors. 2003(5) SCC
641 and in particular paragraph no.10 thereof, learned counsel for
the plaintiff submitted that the court erred in coming to the
conclusion that substantial part of the evidence was recorded
inasmuch as the evidence of attesting witness was absolutely
necessary for the proof of the will. Since the attesting witness was
not examined it cannot be said that the substantial portion of the
evidence was recorded. The contention of the plaintiff that the
court wrongly came to the conclusion that the substantial portion of
the evidence was recorded cannot be accepted. In any event, it is
not permissible for a co-ordinate Bench of the Court to hold that the
Court wrongly decided to proceed under explanation to Rule 2 of
Order 17. Such contention can only be considered by an appellate
Bench. Since the court has proceeded under explanation to Rule 2
of Order 17 of the Code and decided the suit on merits, the only
remedy available to the plaintiff, in my view, is to challenge the
order in appeal. Whether the court ought or ought not to have
exercised the powers under explanation to Rule 2 of Order 17
cannot be subject matter of an enquiry in a motion purporting to be
a motion under Order 9 Rule 13 of the Code. In the present motin,
the court is only required to see whether the suit has been dismissed
under Rule 8 or Rule 3 of Order 13 for entertaining an application
under Rule 9 or Rule 4 of Order 9 of the Code. Once it comes to the
conclusion that the suit is not dismissed under Rule 3 or Rule 8 of
Order 9 of the Code but is dismissed on merits,(by exercising
powers under explanation to Order 17 Rule 2 of the Code), the
Court cannot exercise the powers under Rule 4 or Rule 9 of Order 9
of the Code but require the party to challenge the order of dismissal
in appeal.
7. For these reasons, there is no merit in the motion which is
hereby dismissed.
(D.G.KARNIK, J)
