JUDGMENT [ENTITY], J.
1. The Court : This is to consider an application filed by [ENTITY] and his wife Smt. [ENTITY].
2. The petitioners' case in brief is that one [ENTITY] by suppressing facts and without complying with the mandatory provisions of [ACT] and the Original Side Rules of this Court relating to testamentary matters obtained probate on 18th December, 1996 in respect of an alleged Will dated 15th September, 1995, alleged to have been executed by one [ENTITY], since deceased. It is claimed by the petitioners that prior to her death [ENTITY] made and published her last Will and Testament dated 10th October, 1995 in English Language at Lucknow whereby she appointed [ENTITY], the petitioner No. 1, the sole Executor of the Will bequeathing all her assets to Smt. [ENTITY], the petitioner No. 2. After the death of [ENTITY] an application for grant of probate of the said Will dated 10th October, 1995 was filed by [ENTITY] as an Executor thereof in the Court of District Judge, Lucknow. On 20th September, 1996 probate was granted. It is also stated that one [ENTITY] was the father of Smt. [ENTITY]. [ENTITY] was the elder brother of [ENTITY] and [ENTITY] was the wife of [ENTITY]. The petitioner No. 1 is the husband of Smt. [ENTITY]. [ENTITY] was the owner of Flat No. C-3 at 3, Middleton Row, Calcutta Municipal Corporation No. A-3/3C, Sir [ENTITY], Apsara Co-operative Housing Society Ltd., Calcutta, After getting the probate [ENTITY] caused a letter dated 25.4.1996 to be written by her Advocate to the President/Secretary of the said Apsara Co-operative Housing Society Ltd. to intimate the formalities to be observed by the petitioners for recording of transfer of the said Flat No. C-3 in favour of the petitioner No. 2. In reply dated 10th May, 1996, the Chairman of the said Co-operative Housing Society Ltd. requested the Advocate of the petitioners to submit certain documents to enable them to proceed with the formalities of transfer and recording of the name of petitioner No. 2 as owner thereof. Thereafter the petitioners were surprised by a letter dated 7th January, 1997 written by the Hony. Secretary of the said Co-operative that one [ENTITY] had obtained an order dated 18th December, 1996 from the Calcutta High Court granting probate in his favour of an alleged Will dated 15th September, 1995 executed by the deceased Smt. [ENTITY] claiming himself as the only legal heir of the said [ENTITY] and accordingly the said Co-operative expressed its inability to transfer the said Flat in the name of the petitioner No. 2 until such time the order of this Court obtained by the respondent is set aside. The petitioners started searching the records having applied for the certified copies of the relevant records of the instant case and received the same.
3. It is stated in the petition that the respondent is not the heir or legal representative of the deceased [ENTITY] at all in case [ENTITY] died intestate. It is also claimed that the respondent had falsely alleged that his father [ENTITY] since deceased was the brother of late [ENTITY]. It is claimed that [ENTITY] had no natural brother by the name of [ENTITY]. It is also stated that [ENTITY] also known as [ENTITY] was the only natural brother of [ENTITY] since deceased. It is also stated that in order to avoid issuance of citation and to deprive the petitioners who reside at Lucknow, of the opportunity of contesting the proceeding in respect of the alleged Will the respondent [ENTITY] falsely alleged that he was the only heir of the deceased Smt. [ENTITY].
4. It is stated that the respondent [ENTITY] fraudulently obtained probate of the said alleged Will dated 15.9.1995 by making false allegation/ representation concealing the fact that the petitioner No. 2, Smt. [ENTITY] and her sister [ENTITY] were the sole heiresses and legal representatives of the deceased [ENTITY] and/or [ENTITY] on whom the estate of the deceased would have devolved had [ENTITY] died intestate. The petitioners were not served with any citation or any other notice in connection with grant of probate of the alleged Will dated 15.09.1995.
5. It is claimed that on inspection of the said alleged Will dated 15.09.1995 the petitioners found that the alleged signatures of Smt. [ENTITY] thereon are fabricated and/or forged and the said alleged Will dated 15.09.1995 had not been signed or executed by Smt. [ENTITY] at all. It is claimed that the alleged Will dated 15th September, 1995 became inoperative by the reason of the subsequent Will dated 10th October, 1995 in respect of which probate was granted by the District Judge, Lucknow on 20th September, 1996. Thus, the petitioners filed an application dated 21st March, 1997 for revocation of grant of probate and an order of interim status quo was passed on 21st March, 1997. The said application for revocation was finally disposed of on 5th February, 1998 whereby the probate granted in favour of the respondent [ENTITY] was revoked on the ground that citation not being issued till then to the applicants. It was further ordered that the matter be treated as a suit being contentious. It is also stated that from the correspondence made between the petitioners and the said Cooperative Society it was clear that the said Flat was not transferred in the name of [ENTITY]. But after long lapse of time on 9.4.1999 the said Cooperative Housing informed the learned Advocate-on-Record of the petitioners that [ENTITY] was pressing hard over the transfer of the said Flat in his favour by sending letter dated 1st February, 1999 to the Co-operative Housing Society Ltd. The Advocate-on-Record of the petitioners duly communicated to the said Society about the order dated 5th February, 1998 and 12th February, 1998 passed by this Court. Ultimately, the said Society replied to the letter dated 3rd May, 1999 that as the matter is sub judice the Society would hot recommend the transfer of the Flat to the Deputy Registrar of Co-operative Societies Housing CMC Calcutta. And by that reply it was also intimated by the Society that [ENTITY] filed a petition under [SECTION] of the [ACT] in respect of the Flat in question. It was not known to the petitioners as to when [ENTITY] took custody of the said Flat as there existryl a status quo order passed by the Court. However, the Advocate-on-Record of the petitioners immediately wrote a letter dated 13th May, 1999 requesting the said Society to intimate the date when Shaw Wallace & Co. Ltd. alleged to have given possession of the said Flat to [ENTITY]. One evasive reply by letter dated 17"' May, 1999 was given by the said Society. It is also stated that the petitioners intimated Shaw Wallace & Co. about the status quo order by a letter dated 3rd June, 1999 requesting the said company to inform as to the date when it had surrendered the tenancy to [ENTITY]. Mr. Justice [ENTITY] by His Order dated 13th July, 1999, appointed a Special Officer authorising him to ascertain who have been in occupation and possession as on date and since when.
6. Thereafter the petitioners made an application for appointment of a receiver in respect of the said Flat. The said application was disposed of by an order dated 18th August, 1999. In the said application the petitioners with a view to showing that the said flat was not alienated or let out in favour of any third party relied upon an application under [SECTION] of the [ACT] affirmed by [ENTITY]. It was also stated by the petitioners in that application that the police report will show that the Shaw Wallace & Company did not hand over the vacant possession of the said flat to [ENTITY] as also did not pay any further rent in view of the status quo order dated 21st March, 1997. It is claimed that any such induction of any person in the said flat is in violation of the status quo order. It is also stated that the said [ENTITY] appeared before the Lucknow Court and filed objection in connection with the probate matters filed at the instance of the present petitioners but subsequently withdrew the same.
7. In such circumstances, it is prayed inter alia that direction may be issued upon the receiver to hand over peaceful vacant possession, of the said flat being Flat No. C-3 situated at Apsara Co-operative Housing Society Ltd. to the petitioners and direction may also be given upon Shaw Wallace & Co. to make payment of arrear rent to the receiver in terms of the order dated 26th April, 2001 passed by Mr. [ENTITY], J.
8. The petition is contested by one [ENTITY] by filing an affidavit-in-opposition. He is one of the tenants and occupiers of Flat No. C-3, Middleton Row, Calcutta and he affirmed the affidavit also on behalf of another tenant and occupier of the said flat of Mr. [ENTITY]. It is stated that both Mr. [ENTITY] & Mr. [ENTITY] arc the tenants in respect of the said premises at 3"1 floor at a monthly rental of Rs. 12,000/- on the terms and conditions stated in an agreement dated 28th February, 1997 made between them on one side and Mr. [ENTITY] on the other. Both of them had deposited a sum of Rs. 24,000/- in advance to be adjusted against the rent of last two months of the tenancy. The terms of the agreement has been annexed to the affidavit-in-opposition. It is further stated that [ENTITY] represented to them that one Smt. [ENTITY] since deceased, was the owner of three bed room flat being No. 3-C (3rd floor), Apsara Co-operative Housing Society, Middleton Apartments, 3, Middleton Row, Calcutta-700 071 together with a car parking space on the ground floor of the said premises. It was also represented by [ENTITY] to them that Smt. [ENTITY] died on 25th December, 1996 at Lucknow leaving behind her last Will and Testament dated 15th September, 1995 appointing [ENTITY] as the sole Executor and beneficiary of her estate. It was also represented by Mr. [ENTITY] to them that he made a petition for probate of the said Will before this Court and probate was granted after duly considering all the facts and figures by an order dated 18th February, 1996. It was also represented by Mr. [ENTITY] to them that he had been looking after the immovable property of Smt. [ENTITY] and had paid rates and taxes to the Calcutta Municipal Corporation and maintenance and other charges of the flat to the said Co-operative. [ENTITY] also said that on the strength of the said probate he obtained possession of the said flat on 19th February, 1997 on behalf of Shaw Wallace & Company Limited, the then tenant/ lessee of the said flat. It is also stated that both Mr. [ENTITY] and Mr. [ENTITY] obtained keys and vacant possession of the said flat from [ENTITY] on 1st March, 1997 and had been paying rents regularly upto the month of July, 1999 to [ENTITY]. Subsequently, they came to know that a Special Officer and thereafter one Mr. [ENTITY], learned Advocate were appointed receiver by this Court on a petition of [ENTITY] and Smt. [ENTITY]. It is admitted that both of them came to know the subsequent developments and the orders passed by this Court from time to time.
9. It is further stated that the Special Officer held a meeting with the tenants on 22nd July, 1999 and directed the said tenants to produce the rent receipts and accordingly the tenants produced the rent receipts to him. The said Special Officer Mr. [ENTITY], learned Advocate came for inspection of the said flat along with the advocates of the parties to ascertain who are the occupants and in possession of the said flat and Mr. [ENTITY] submitted his report to the Court after such inspection. It is further stated that on an application of the petitioners, Mr. [ENTITY], the learned Advocate was appointed receiver by order dated 18th August, 1999. Mr. [ENTITY] visited the flat in question to take formal possession on 6th September, 2000 and since then the tenants have been paying regularly the monthly rents to the said receiver from the month of August, 1999 till the month of October, 2001. It is further stated that the electric connection to that flat was discontinued by the authority on the ground of nonpayment of the common maintenance charges. It is claimed that the payment of common maintenance charges was not the responsibility of the tenants. But a sum of Rs. 267A on account of electricity charges was recovered from the tenants by the said Co-operative. It is further stated that [ENTITY] took the steps with the receiver for restoration of the electric connection and his advocate took up the matter with the Society but nothing has been done. The tenants move the matter before Mr. [ENTITY], J. on 9th November, 2000 upon a notice to the learned Advocates of the parties and after hearing the submissions of all concern it was ordered that the said petition may be filed before the appropriate Court. It is claimed that the tenants have paid a sum of Rs. 7,72,000/- on account of rent in respect of the said flat upto October, 2001 and had also made a deposit of Rs. 24,000/- equivalent to two months' rent. In this background the tenants made some prayers to the Court including that an order of injunction may be passed restraining the parties to this proceeding and the Society from interfering with the possession with all facilities enjoyed by the tenants. The tenants have also mentioned the order of Mr. [ENTITY], J. passed on 13th December, 2000 and the order passed by Mr. [ENTITY], J. on 9th February, 2001, The tenants have also denied all the claims of the petitioners.
10. An affidavit-in-reply has been filed by [ENTITY] in which the same thing has indeed been repeated which was stated in the petition itself. Beside oral argument of the learned Advocate for the defendant/petitioner, i.e. [ENTITY] and [ENTITY], written notes on arguments have been filed by them in which it is stated that in the probate proceeding which was initiated at the instance of [ENTITY] and subsequently being the same treated as contentious the present petitioners became the defendants, the plaintiff [ENTITY] is not appearing in the proceeding although he had contested in the earlier interlocutory proceeding. This goes to show that the plaintiff is not interested in the proceeding. It is also stated that [ENTITY] had withdrawn his objection in the earlier grant of probate in favour of the defendant No. 1 before Lucknow Court and as such he cannot claim any grant of probate in his favour in respect of the alleged Will dated 15th September, 1995. Accordingly, the instant probate proceeding is liable to be dismissed.
11. It is further stated that the dismissal of probate proceeding simpliciter without any consequential order with regard to the restoration of possession in favour of the beneficiary, i.e. the defendant No. 2 would cause undue hardship to the present defendants for which the instant application being [CASE NUMBER] has been filed. It is claimed that the copy of the said petition was served upon [ENTITY] and others. It is pointed out in the written notes on arguments that the main question arises in the instant probate proceeding is as to whether this Court having regard to the developments taken place during the pendency of the said probate proceeding is required to pass consequential orders including the orders in the nature of restitution having dismissed the probate proceeding initiated by [ENTITY] showing the restitution to form part of the decree asking the receiver to execute such order.
12. In the written notes on arguments the learned Advocate for the defendants/petitioners have given the genealogical table of [ENTITY], the father of [ENTITY] and [ENTITY] and their descendants where the name of [ENTITY] does not appear. Thereafter only the facts of the case as we have already stated has been repeated.
13. Mr. [ENTITY], the learned Advocate appearing for the occupants like Mr. [ENTITY] and Mr. [ENTITY] has drawn my attention to the arguments made by the learned Advocate for the petitioners that the main attack of the defendants/petitioners is on [ENTITY] who is not before the Court. It is also pointed out that the present petition has been filed in [CASE NUMBER] by [ENTITY] and as Mr. [ENTITY] is not appearing to contest the [CASE NUMBER] it should be dismissed along with the present petition. Mr. [ENTITY] has drawn my attention to the prayers made in the application and according to him the vital and main prayer is prayer 'd'. The said prayer of the petitioners reads as below :
"Direction upon the receiver to hand over peaceful vacant possession of the said flat being Flat No. C-3 situated at Apsara Co-operative Housing Society Ltd. to the present petitioners".
From the above paragraph Mr. [ENTITY] has drawn the conclusion that in fact the petitioners by that prayer want to evict the bona fide tenant under the guise of restitution.
14. It is claimed by Mr. [ENTITY] that both the occupants Mr. [ENTITY] and Mr. [ENTITY] are valid tenants engaged by the executor [ENTITY] holding valid probate at that time. It is pointed out by him that [ENTITY] got the probate on 18.12.1996 and the tenants were inducted on 28.2.1997 whereas the said probate of [ENTITY] was revoked on 9.4.1999. Mr. [ENTITY] has also taken note of the fact that the order of status quo was passed on 21.3.1997 and accordingly the induction of the tenants was not during the prohibitory period. Mr. [ENTITY] has also drawn my attention to the report of the receiver wherein it is clear that on the date of inspection i.e. on 6.9.2000 the learned receiver found the tenant in occupation of the premises in question. Mr. [ENTITY] has confirmed that those tenants are paying rents to the receiver under the order of the Court. Mr. [ENTITY] has then drawn my attention to the copy of an order passed by the learned Judge, City Civil Court, Calcutta in connection with [CASE NUMBER] appearing at page 127 of the affidavit-in-opposition. It appears from the said order that Mr. [ENTITY] filed the said suit and an application under [SECTION] and [SECTION] with [SECTION] of the [ACT] was also filed by him. The learned Judge appears to have passed an ex parte order of an ad interim injunction in favour of the said [ENTITY]. Thus, it is argued that the occupation of [ENTITY] as tenant was recognised by that order. It is also pointed out that the said suit was ultimately transferred to the High Court and is pending with the said ad interim order of status quo. Mr. [ENTITY] has further argued that in this background the main question before the Court to determine whether a bona fide tenant can be evicted without filing a suit for eviction and only by affidavit a petition as that of [CASE NUMBER], keeping in view that the status quo order in a separate suit in favour of one of the tenants which still exists, order, as prayed for can be passed.
15. I shall now deal with the several case laws referred to by the learned Advocate for the defendants on the question of fraud as alleged in the instant case. Thus, it was held in the case of [PRECEDENT], that judgment or decree obtained by fraud is to be treated as nullity and can be questioned even in collateral proceedings. There the term, "fraud" was explained as non-disclosure of relevant and material documents with a view to obtain advantage amounts to fraud. It was held in the case of [PRECEDENT]., that once fraud is proved it will deprive the person of all advantages or benefits obtained thereby. In the case of [PRECEDENT]., , the concept of fraud and its effect was explained.
16. The learned Advocate for the defendants submitted that the act of Court cannot prejudice a party and in this connection he cited a number of case laws as follows :
1. [PRECEDENT];
2. [PRECEDENT];
3. [PRECEDENT]., .
The essence of the decision in those cases is that if any order is passed for the fault of the Court, a party cannot suffer therefor.
17. On the question of restitution the learned Advocate for the defendants referred to the case law reported in [CASE NUMBER]. Despite my efforts to collect the book from the library of the Court, I could not collect the same. But the decision of that case is quoted in the written notes on arguments filed by the defendants and it reads as under :
"Therefore, when the question of restitution arose, it became necessary to decide what was the position of holding in regard to these tenants. The learned Advocate General has argued that under [SECTION] of the [ACT], restitution cannot be granted, by motion, unless there is an order for restitution in the decree. So far as we are aware, that is a proposition contrary to the settled practice of this Court and of the Bombay High Court, as well as of Their Lordships of the Privy Council, holding has no doubt a right to be put exactly in the same position in which he was before, and neither more nor less; and therefore he is entitled to joint possession with the other owners; and no title taken pendente lite can prevent him from removing a tenant if he was not found on the land before the partition; or, in the words of [SECTION], he is entitled to have possession delivered over to him, or to such person as he appoints to receive delivery on his behalf, and, if need be, by removing any person bound by the decree, who refuses to vacate the property".
It is also stated that the said decision was relied on in the case of [PRECEDENT]., . In the said case suit premises was in occupation of the tenants of defendants. The decree-holder obtained possession in execution evicting the tenants of the defendants. The said decree was reversed in appeal and in such circumstances the application for restitution under [SECTION] of the [ACT] was filed by the defendants. It was held that the defendant is entitled to actual possession and not merely symbolic possession of the premises in spite of the fact that it was not in his occupation when he lost possession of it under the decree passed by the Trial Court. It was further held that the tenant inducted pendente lite is liable to be evicted in restitution proceedings.
18. The learned Advocate for the defendants has also argued that it is a settled principle of law that a successful party can demand the delivery of benefit earned by the opposite party under the interim order of the Court or to make restitution for what it has lost and it is the duty of the Court to do so. The principle of restitution is also explained in the ratio decided in the case of [PRECEDENT]., .
19. The striking features of the instant case before this Court are that first, the suit itself is yet to be disposed of and second, the status quo order passed in the other suit pending before the High Court is still in existence.
20. It is true that the defendants have prima facie found the grounds of fraud which can be dealt with against the plaintiff, [ENTITY] and the same can be decided finally only at the time of hearing and disposal of the suit arising out of [CASE NUMBER]. In this connection, I may hark back on the decision made in the case of [PRECEDENT] (supra) where this question of restitution came after the decree passed in favour of the tenants and was reversed in appeal. But the position is altogether different here in the instant case.
21. The second point which in my humble view may be the stumbling block against the present petition filed by the defendants. There is no denial, of course no admission also, as regards the ground taken by the learned Advocate for the tenants that the status quo order passed in the other suit being [CASE NUMBER] in favour of Mr. [ENTITY], one of the occupants and another is still in force and in the said suit [ENTITY], the plaintiff of the suit was the defendant. Rightly or wrongly the occupants obtained the status quo order in that suit and the said suit is still pending before the High Court. In any of the case laws cited by the learned Advocate for the respondents such situation as stated above was not in existence and here the facts of the instant case differ materially from the facts of the case laws referred to by the learned Advocate for the petitioners. Accordingly, I am of the view that the application being [CASE NUMBER] has no merits to stand.
22. In view of what has been discussed in the foregoing lines the application being [CASE NUMBER] stands rejected. Let the matter go out of the list with liberty to mention.
23. Urgent xerox certified copy of this order be made available to the parties, if applied for.