Bombay High Court
Prashant Bhagwandas Bajoriya vs Smt. Bharti Bharat Bajoriya And ... on 14 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.107 OF 2014
Prashant Bhagwandas Bajoriya,
Aged about 39 years, Occ.
Business, r/o. In front of
Collector Office, Civil Lines,
Yavatmal. .......... APPELLANT
// VERSUS //
1.Smt. Bharti Bharat Bajoriya,
Aged about 37 years, Occ.
Business.
2.Chetan Bharat Bajoriya,
Aged about 13 years, Occ.
Education through natural
guardian respondent no.1
Smt. Bharti Bharat Bajoriya
Both respondent nos. 1 and 2,
r/.o. Bajoriya Plaza, LIC square
Yavatmal, Tq. and Distt.
Yavatmal.
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3. Smt. Sushilabai Bhagwandas
Bajoriya, Aged about 63 years,
Occ.Household, r/o. In front of
Collector Office, Civil Lines,
Yavatmal.
4. Deleted as per Court's order
dt.30.7.2015.
5. Deleted as per Court's order
dt.30.7.2015. .......... RESPONDENTS
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Mr.Firdos Mirza, Adv. for the Appellant.
Mr.S.C.Bhalerao, Adv. for Respondent Nos.1 and 2.
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Date of reserving the Judgment : 10.8.2015.
Date of pronouncing the Judgment : 14.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. Heard.
2. Admit.
3. Record and proceedings are dispensed with by
consent at the admission stage.
4. The challenge is to the order passed by the Civil Judge
(Sr.Dn.), Yavatmal (trial Court) granting interim injunction
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dt.16.8.2014 below Exh.5 in M.J.C. No. 40 of 2014. The interim
order restrained creation of third party rights in disputed property
mentioned in para 5 of the application and also restrained
withdrawal of amount from the Savings Bank Account No.
01190005930 in the State Bank of India at Main branch, Yavatmal.
5. The facts in the background are stated thus :-
M.J.C No. 62 of 2008 was filed for grant of Probate/
Letter of Administration allowed on 2-4-2012. Pursuant to the
order of issuance of the Letter of Administration allegedly
obtained by fraud, name of Bharat Bajoria was deleted from
the proceedings and allottees (wife and son of said Bhara t
Bajoria) of the L/A were likely to sell the disputed properties
and withdraw the sums deposited in the Savings Bank
account (supra).
4. Objections of the appellant herein is that :
i) The proceeding under Section 383 of the Indian
Succession Act is not tenable.
ii)The Court had no jurisdiction to grant interim
injunction in view of Section 41 (b) of the Specific
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Relief Act. The provision of section 41 (b) of the
Specific Relief Act lays down the circumstances under
which the injunction order cannot be made.
iii) Relief of temporary injunction cannot be granted
by the Testamentary Court.
5. The trial Court came to prima facie finding that though
applicant no.3 in M.J.C. No.62 of 2008 was living, applicant
nos. 1 and 2, fraudulently claiming that they are legal heirs
of applicant no.3, have moved the Court for deleting the
name of applicant no. 3 Bharat Bajoria. Applicants nos. 1 and
2 thereafter got their names mutated and were in the process
to sell the disputed property(allegedly sold one property).
6. The question raised in this appeal is as to whether the
trial Court was correct to grant interim injunction order
impugned herein. The allottees of L/A were expected to
administer the property left by the deceased. Letter of
Administration did not vest any absolute legal title in
applicant nos. 1 and 2 to sell the disputed property. Hence, it
was considered as a fit case to use inherent power of the
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Court under Section 151 of the Code of Civil procedure and to
injunct applicants no. 1 and 2 from creating third party rights
in respect of the disputed property and to restrain from
withdrawing the money from the Savings Bank account
(supra) till disposal of the main application. The object of the
impugned order was to preserve the status quo as it is till the
disposal of the M.J.C. 40 of 2014.
7.
According to learned Advocate Mr.Mirza, in the ruling
in Ramchandra Ganpatrao Hande vs. Vithalrao Hande
reported in 2011 (4 ) Mh. L. J. 50, it is argued that the Indian
Succession Act is a self-contained code insofar as the question
of making an application for probate, grant or refusal of
probate or an appeal carried against the decision of the
probate Court. This is clearly manifested in the fascicule of
the provisions of the Act. The probate proceedings shall be
conducted by the probate Court in the manner prescribed in
the Act and in no other ways. The grant of probate with a
copy of the will annexed establishes conclusively as to
appointment of the executor and valid execution of the will.
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Thus, it does no more than establish the factum of the will
and the legal character of the executor. Probate Ccourt does
not decide any question of title or of existence of the property
itself. A Testamentary Court is only concerned with finding
out whether or not the testator executed the testamentary
instrument of his free will. It is settled law that grant of a
Probate or Letters of Administration does not confer title to
property. They merely enable administration of the estate of
the deceased. The jurisdiction of the Probate Court is limited
being confined only to consider genuineness of the will. A
question of title arising under the Act cannot be gone into the
(sic probate) proceedings. Construction of a will relating to
the right, title and interest of any other person is beyond the
domain of the Probate Court.
8. Mr.Mirza also referred to the ruling in State of Uttar
Pradesh and Others vs. Roshan Singh (Dead) by L.Rs.
reported in (2008) 2 SCC 488. It must be said that all the
rules of procedure are the handmaid of justice. The language
employed by the draftsman of processual law may be liberal
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or stringent, but the fact remains that the object of prescribing
procedure is to advance the cause of justice. In an adversarial
system, no party should ordinarily be denied the opportunity
of participating in the process of justice dispensation. Unless
compelled by express and specific language of the Statute, the
provisions of the C.P.C. or any other procedural enactment
ought not to be construed in a manner which would leave the
Court helpless to meet extraordinary situations in the ends of
justice. It is observed thus :
" Processual law is not to be a tyrant but a servant,
not an obstruction but an aid to justice. Procedural
prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of
justice as held by the Apex Court in the judgment in
the case of M/s.R.N.Jadi and Subhashchandra, AIR
2007 SC 2571. Keeping the aforesaid principles of
interpretation and the importance of procedural law in
mind, one has to give wide meaning to the phrase " in
any proceeding '' so as to advance the cause of justice."
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9. All proceedings in the Court of Civil jurisdiction would
fall within the scope of this phrase so as to lien in favour of
Court having power under Sections 151, 152 and 153 in
favour of the Civil Court to correct errors in the proceeding so
as to amend judgment and decree in order to do justice
between the parties. In this view of the matter, the impugned
order is liable to be sustained on the touchstone of Sections
152 and 153 read with Section 151 of the Code. Mr Mirza
also placed reliance upon the ruling in Royal Palms (India)
Pvt Ltd. and others vs. Bharat Shantilal Shah and others
reported in 2009 (2) Bom C.R. 622 to argue that the trial
Court failed to decide the preliminary issue as to the
jurisdiction of the Court to entertain and try the proceedings.
10. Mr.Bhalerao submitted that that there was no challenge
to maintainability of the suit on the premise of want of
jurisdiction of the trial Court nor any preliminary issue was
raised by mentioning Section 9-A of the Code of Civil
Procedure Code. Mr Bhalerao refers to Para 17 of the ruling
in Shipping Corporation of India Ltd. vs. Machado
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Brothers and others reported in 2004 (4) Civil LJ 686 to
argue that, in the absence of application questioning want of
jurisdiction of the trial Court to entertain the suit as
contemplated by law, the appellant cannot; without raising
the issue as to jurisdiction of the trial Court to entertain and
try the suit, now be heard saying that the trial Court should
have tried the preliminary issue of jurisdiction.
11. Shri Bhalerao urged that the appellant cannot be
allowed to rely upon any unregistered and unexhibited
document to plead that the there was relinquishment of
share in the immovable property by any document in the
absence of registration and requisite compliance of the law as
to Stamp duty. Reliance is placed upon the ruling in Santosh
Motiram Solankhe vs. Arjun asaram Solanke reported in
2014 (3) Mh.L.J. 43.
12. It is settled legal position that the objection has to be
raised by the party raising objection to jurisdiction of the
Court to entertain and try the suit at the hearing of the
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application for interim injunction or interim application such
as appointment of the Receiver. Then only the trial Court is
duty bound to first frame the preliminary issue as to it's
jurisdiction to entertain and try the suit. In Tayabbhai
Bagasarwala and another vs. Hind Rubber Industries Pvt.
Ltd. reported in AIR 1997 SC 1240 in paragraph 16, it is
observed thus :-
" According to this section, if an objection is raised
to the jurisdiction of the Court at the hearing of an
application for grant of, or for vacating interim
relief, the Court should determine that issue in the
first instance as a preliminary issue before granting
or setting aside the relief already granted. An
application raising objection to the jurisdiction to
the Court is directed to be heard with all expedition.
Sub-rule (2), however, says that the command in
sub-rule (1) does not preclude the Court from
granting such interim relief as it may consider
necessary pending the decision on the question of
jurisdiction. In our opinion, the provision merely
states the obivious. It makes explicit what is implicit
in law. Just because an objection to the jurisdiction
is raised, the Court does not become helpless
forthwith - nor does it become incompetent to grant
the interim relief. It can. At the same time, it should
also decide the objection to jurisdiction at the earlier
possible moment. This is the general principle and
this is what Section 9-A reiterates."
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13. The competent Civil Court is not powerless to grant
appropriate relief at the interim stage of the Civil
proceedings even during pendency of the decision as to the
preliminary issue of jurisdiction if raised by the party to the
suit.
14. The trial Court during pendency of the Civil proceeding
before it was pleased to grant interim relief in the form of
temporary injunction to prevent the non-applicants from
creating third party rights and to operate the Savings Bank
Account. If, according to the appellant, the Civil Court had
no jurisdiction to entertain and try the proceedings, it is
open for the appellant to raise the objection as to jurisdiction
of the Civil Court to entertain and try the proceeding filed by
the respondent. The objection as to jurisdiction of the Civil
court if raised, learned Civil Judge (Sr.Dn.) shall frame the
preliminary issue and hear and decide the same
expeditiously, as early as possible.
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15. The appeal from order stand disposed of
accordingly with no further comments on the merits of the
controversy between the parties.
JUDGE
jaiswal
