Jharkhand High Court
Pushplata Prasad vs Amritanshu Prasad on 15 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:19176
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 577 of 2025
Pushplata Prasad, aged about 80 Years wife of Late Professor R.P. Amist,
resident of B-1, Siddhi Homes Apartment, Behind Dr. R.C. Mishra,
resident Down Tagore Hill Road, Morabadi, P.O. Ranchi University, P.S.-
Bariatu, District- Ranchi (Jharkhand) through Constituted Attorney
Mayank Kumar, aged about 28 years Son of Shiv Kumar Jha, resident of
Neori Bikas, P.O. and P.S. Mesra, District- Ranchi (Jharkhand)
... Petitioner
-Versus-
1. Amritanshu Prasad, Son of Late Durga Prasad, resident of 183/C, Road
No. 4, Ashok Nagar, P.O. Doranda, P.S.- Argora, District- Ranchi
(Jharkhand)
2. Shitanshu Prasad, Son of Late Durga Prasad, presently residing at
Bunglow No. 10, Park Avenue, IISCO Steel Plant, P.O. and P.S. Burnpur,
District- Burdwan (West Bengal) PIN-713325
3. Shanti Verma, Daugther of Late Durga Prasad and Wife of Late. S.S.
Verma, resident of 703, Shinnecock Hill, Seneca, SC29678, U.S.A
4. Mrs. Preeti Hargave, Daughter of Late Durga Prasad and Wife of Dr. R.V.
Hargave, resident of C/O Dr. R.V. Hargave, 705 A, Princeton,
Hiranandani Estate, Ghodbunder Road, Thane (W)-400601, P.O., P.S.
and District- Thane
5. Mrs. Premlata Prasad, Daughter of Late Durga Prasad and Wife of Mr.
M.M. Prasad, resident of C/O Mr. M.M. Prasad, Flat No. 104,
Omkareshwar Aptt. Dr. J. Sharan Lane, Baxi Compound, P.O. and P.S.-
Bariatu, District- Ranchi-834009
6. Dr. Tanmay Prasad, Son of Sri Amritanshu Prasad, presently residing at
Flat No. 106, First Floor, PG Quarters, Raja Rajeshwari Medical College
and Hospital, 202 Kambipura, Mysore Road, P.O. Kumbalagodu, P.S.
Kumbalagodu, Bangalore-560074
7. General Peoples of Locality of Bariatu, Ranchi, P.O. and P.s. Bariatu,
District- Ranchi (Jharkhand) ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Amar Kumar Sinha, Advocate
For O.P. No.1 : Mr. Prashant Pallav, Advocate
Ms. Shivani Jaluka, Advocate
For O.P. No.6 : Mr. Ayush, Advocate
Mr. Bajrang Kumar, Advocate
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06/15.07.2025 Heard Mr. Amar Kumar Sinha, learned counsel for the petitioner,
Mr. Prashant Pallav, learned counsel for the opposite party no. 1 and Mr. Ayush,
learned counsel for the opposite party no. 6.
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2. This petition has been filed under Article 227 of the Constitution of
India for setting-aside the order dated 04.01.2025 passed by the learned
Additional Judicial Commissioner-XV, Ranchi in Probate Case No. 09 of 2017
contained in Annexure-5, whereby, the petition filed by the petitioner under
Order XXVI Rule 11 of the CPC for grant of leave to issue a commission for
examination and cross-examination of petitioner/opposite party no.5 at her
residence on account of serious illness, has been rejected by the learned
Court.
3. Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner
submits that the opposite party no. 1/plaintiff instituted a suit for grant of
Probate under Section 272 read with Section 289 of the Indian Succession
Act in the Court of the learned Principal Judicial Commissioner, Ranchi being
Probate Case No. 09 of 2017 with respect to the alleged Will dated 21.06.2006
which has been executed by the deceased Testator, namely, Durga Prasad in
favour of the petitioner bequeathing the properties mentioned in Schedule-A
to E of the petition and prayer was made for the grant of aforementioned
properties in favour of the petitioner. He submits that after notice, opposite
party nos. 1, 2 and 5 jointly filed their show-cause and the matter proceeded
further and the evidences have been adduced on behalf of the opposite party
no. 1/ plaintiff. He further submits that the plaintiff's evidence has been closed
and, thereafter, the matter was running for the evidence on behalf of the
petitioner/opposite party no.5 and the chief was filed in August, 2024 and for
cross-examination the prayer was made by filing a petition before the learned
Court to constitute a commission for examination and cross-examination of
the petitioner herein at her residence, which has been rejected by the learned
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Court. He also submits that the petitioner is an aged lady and she is suffering
from several ailments and in view of that, said petition has been filed by the
petitioner, however, the learned Court has rejected the said petition. On these
grounds, he submits that the impugned order may kindly be set-aside.
4. Mr. Prashant Pallav, learned counsel appearing for the opposite party
no. 1 / plaintiff opposed the prayer and submits that the petitioner herein has
come to the learned Court for swearing the affidavit on 1st August, 2024. He
further submits that only to delay the matter, such petition has been filed and
in view of that, the learned Court has rightly rejected the same.
5. The Court has perused the impugned order dated 04.01.2025. It
transpires that the learned Court has found that the petitioner herein has
appeared before the Notary Public for affidavit to her statement on
01.08.2024 and in view of that, the learned Court found that she is able to
move and there is dispute between the family members with regard to the
said probate of Will and in view of that, learned Court has been pleased to
reject the said petition.
6. It has been pointed out that 14 dates have passed only for the cross-
examination and it appears that the said petition has been filed only to delay
the matter. The Court has further looked into the medical certificate and the
ailment is said to be the obesity and further no prescription and any
investigation report has been annexed with the petition, which further doubts
the conduct of the petitioner.
7. Moreover, the petition has been filed before the learned Court under
wrong provision of law under Order XXVI Rule 11 of the C.P.C. which is meant
to adjust accounts in a suit where such examination or adjustment is
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necessary, however, merely filing the petition under the wrong provision of
law cannot be a ground for rejecting the petition. At the same time, what has
been discussed herein above, it clearly suggests that the petitioner has
appeared before the Notary Public for her statement on 01.08.2024 for
swearing the affidavit and, thereafter, 14 dates have elapsed.
8. A reference may be made to the judgment passed by the Hon'ble
Supreme Court in the case of Shiv Cotex V. Tirgun Auto Plast P. Ltd and
Ors, reported in MANU/SC/0991/2011, wherein, at paragraph no. 16 it
has been held as under:
"16. No litigant has a right to abuse the procedure
provided in the CPC. Adjournments have grown like cancer
corroding the entire body of justice delivery system. It is true
that cap on adjournments to a party during the hearing of the
suit provided in proviso to Order XVII Rule 1 CPC is not
mandatory and in a suitable case, on justifiable cause, the
court may grant more than three adjournments to a party for
its evidence but ordinarily the cap provided in the proviso to
Order XVII Rule 1 CPC should be maintained. When we say
'justifiable cause' what we mean to say is, a cause which is
not only 'sufficient cause' as contemplated in sub-rule (1) of
Order XVII CPC but a cause which makes the request for
adjournment by a party during the hearing of the suit beyond
three adjournments unavoidable and sort of a compelling
necessity like sudden illness of the litigant or the witness or
the lawyer; death in the family of any one of them; natural
calamity like floods, earthquake, etc. in the area where any of
these persons reside; an accident involving the litigant or the
witness or the lawyer on way to the court and such like cause.
The list is only illustrative and not exhaustive. However, the
absence of the lawyer or his nonavailability because of
professional work in other court or elsewhere or on the ground
of strike call or the change of a lawyer or the continuous illness
of the lawyer (the party whom he represents must then make
alternative arrangement well in advance) or similar grounds
will not justify more than three adjournments to a party during
the hearing of the suit. The past conduct of a party in the
conduct of the proceedings is an important circumstance
which the courts must keep in view whenever a request for
adjournment is made. A party to the suit is not at liberty to
proceed with the trial at its leisure and pleasure and has no
right to determine when the evidence would be let in by it or
the matter should be heard. The parties to a suit - whether
plaintiff or defendant - must cooperate with the court in
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ensuring the effective work on the date of hearing for which
the matter has been fixed. If they don't, they do so at their
own peril. Insofar as present case is concerned, if the stakes
were high, the plaintiff ought to have been more serious and
vigilant in prosecuting the suit and producing its evidence. If
despite three opportunities, no evidence was let in by the
plaintiff, in our view, it deserved no sympathy in second appeal
in exercise of power under Section 100 CPC. We find no
justification at all for the High Court in upsetting the
concurrent judgment of the courts below. The High Court was
clearly in error in giving the plaintiff an opportunity to produce
evidence when no justification for that course existed."
9. In light of the above discussions, the Court finds that there is no
illegality in the impugned order and, as such, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/ Simran A.F.R.
