Smt. Shailajaraje Puar vs Smt. Gayatri Raje Ruar
2023 Latest Caselaw 1801 MP

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                                                       M.P. No.311/2023


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                ON THE 1st OF FEBRUARY, 2023



                 MISC. PETITION No. 311 of 2023

BETWEEN:-
SMT. SHAILAJARAJE PUAR W/O SHRI C. NARAYAN, AGED ABOUT 64
YEARS, OCCUPATION: HOMEMAKER 496 AWAS FATA, ALIBAGH,
DISTRICT RAIGADH (MAHARASHTRA)
                                                  .....PETITIONER
(SHRI RAVINDRA SINGH CHHABRA, SENIOR ADVOCATE WITH SHRI
AMAN ARORA, ADVOCATE FOR THE PETITIONER.)

AND
   SMT. GAYATRI RAJE RUAR W/O LATE SHRI TUKOJI RAO PUAR,
1. AGED ABOUT 57 YEARS, 197, ANAND BHAWAN, PALACE, A.B.
   ROAD, DEWAS (MADHYA PRADESH)
2. PUBLIC AT LARGE NOT MENTION (MADHYA PRADESH)
   SMT. UTTARA RAJE W/O SHRI PRATAP SINGH PATANKAR, AGED
   ABOUT 67 YEARS, SULOCHANA APARTMENT, KARVE ROAD
3.
   ERANDWANE, OFF INCOME TAX LANE, BEHIND RAJMAL LAKI
   CHAND JEWELERS PUNE (MAHARASHTRA)
   SMT. DEVIKA RAJE PHALKE W/O SHRI HEMANT PHALKE, AGED
4. ABOUT 61 YEARS, 570, SATYA SAI NAGAR, SCHEME NO. 114 PART
   II, INDORE (MADHYA PRADESH)
   VIKRAM SINGH PUAR S/O LATE SHRI TUKOJI RAO PUAR, AGED
5. ABOUT 33 YEARS, 197, ANAND BHAWAN PALACE, A.B. ROAD,
   DEWAS (MADHYA PRADESH)
   MS. KANIKA RAJE PUAR D/O LATE SHRI TUKOJI RAO PUAR,
6. AGED ABOUT 26 YEARS, 197, ANAND BHAWAN PALACE, A.B.
   ROAD, DEWAS (MADHYA PRADESH)
                                                 .....RESPONDENTS
(None for the respondents.)
      This petition coming on for hearing on admission this day, the
court passed the following:
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                                                          M.P. No.311/2023


                               ORDER

The petitioner has filed the present petition being aggrieved by order dated 10.12.2022 whereby learned District Judge, Alot has accepted the application filed by respondent No.1 under order 19 Rule 2 read with Section 151, C.P.C. and she been permitted to cross-examine respondent No.4/non-applicant No.4 on an affidavit filed by her in support of application filed under Order 1 Rule 10 of the C.P.C.

Respondent No.1/applicant has filed an application u/s. 276 & 278 of the Indian Succession Act, 1925 for grant of probate/letter of administration before the District Judge, Alot. In the said application, respondents No.2 to 6 are arrayed as non-applicants. Respondent No.1 is wife of Tukojirao; present petitioner (non-applicant No.2), respondent No.3 (non-applicant No.2), and respondent No.4 (non- applicant No.4) are daughters of Late Krishnajirao; and respondent Nos. 5 & 6 (non-applicants No.5 & 6) are son and daughter of Tukojirao. The aforesaid application has been filed seeking probate of Will dated 6.6.1988 in respect of the properties mentioned in Para 7 of the application.

The non-applicants No.2, 3 and 4 have filed the joint reply praying for dismissal of the application for probate. They have also filed preliminary objection about maintainability of the application. Respondent No.4 (non-applicant No.4) has filed an application under Order 1 Rule 10 of the C.P.C. seeking deletion of her named from the array of non-applicants and in support of the said applicant she has also filed an affidavit.

Respondent No.1/applicant filed an application under Order 19 Rule 2 read with Section 151 of the C.P.C. seeking direction for

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M.P. No.311/2023

presence of non-applicant No.4 for her cross-examination as regards to the affidavit filed in support of application filed under Order 1 Rule 10 of the C.P.C. The aforesaid application was objected by the present petitioner. The said application came up for hearing on 10.12.2022. After hearing the parties learned District Judge has allowed the application. Since non-applicant No.4 was present in the Court, hence requested for recording of her deposition as well as cross-examination. The present petitioner filed an application u/s. 151 of the C.P.C. seeking an adjournment as she wanted to challenge the order passed on application filed under Order 19 Rule 2 of the C.P.C. before the High Court Learned District Judge has fixed the case on 28.1.2023 for arguments on application u/s. 265 of the Indian Succession Act and for reply to application filed under Order 1 Rule 10 of the C.P.C. Hence, the present petition before this Court.

Learned senior counsel appearing for the petitioner submits that the learned District Judge has not followed the procedure prescribed under the C.P.C. and under the Indian Evidence Act. Under Order 19 Rule 2 it is for the Court to call upon the parties to file affidavit in order to prove any facts, but in the present case, non- applicant No.4 has filed an affidavit in support of application under Order 1 Rule 10 of C.P.C. for which she was not liable to be cross- examined. Hence, the learned District Judge has wrongly allowed the application filed under Order 19 Rule 2 of C.P.C. In support of his contention, Shri Chhabra has placed reliance over the judgment passed by the High Court of Judicature : Andhra Pradesh at Hyderabad in the case of Shetty Chandra Shekar V/s. Neeti Ramulu : 2008 (1) APLJ 183 (HC); and High Court of Madras in the case of P.N. Karuppa Gounder V/s. Karuppayal : 2013 1) MWN

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M.P. No.311/2023

(Civil) 425, wherein it has been held that the affidavits filed in support of application are not "evidence". Either party cannot invoke Order 19 Rule 2 to call upon deponent for cross-examination in relation to said affidavit. Hence, the impugned order has been passed by travelling beyond jurisdiction and the same is liable to be set aside.

After having heard the learned senior counsel appearing for the petitioner, I have perused the material available on record.

The issue is, whether the present petitioner can be said to be an aggrieved party to the impugned order passed by the learned District Judge. Respondent No.4/non-applicant No.4 who is not willing to participate in the probate proceedings and accepted the Will dated 6.6.1988 filed an application under Order 1 Rule 10 of the C.P.C. hence seeking deletion of her name from the array of non-applicants. In support of said application she has filed her affidavit. Since respondent No.4/non-applicant No.4 had earlier filed reply to the probate application along with other non-applicants contending that the Will dated 6.6.1988 is forged and fabricated, therefore, the applicant has filed an application under Order 19 Rule 2 of the C.P.C. for calling upon non-applicant No.4 to make a statement on oath and for her cross-examination qua the affidavit filed in support of application under Order 1 Rule 10 of the C.P.C. Looking to the different stands taken by non-applicant No.4. learned District Judge has rightly allowed the application filed under Order 19 Rule 2. Order 19 Rule 2 specifically provides that in order to verify certain facts the Court can call upon either party to file an affidavit and on request, he can be called for cross-examination. Here in the present case, respondent No.4 (non-applicant No.4) suo motu filed an

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M.P. No.311/2023

affidavit and a prayer for cross-examination was made by the applicant in order to ascertain the stand taken by non-applicant No.4 in the matter. No prejudice is going to be caused to the present petitioner if the non-applicant No.4 is not willing to contest the application for probate. In the considered opinion of this Court, no case for interference is made out.

Accordingly, this petition is dismissed in limine.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.02.02 17:44:23 +05'30'