SANJU PANDA, J. W.P.(C ) NO.15349 OF 2008 (Decided on 03.11.2010) PRASANTA KUMAR JENA ………. Petitioner. .Vrs. DR. MINATI MISHRA & ORS. ………. Opp.Parties. CIVIL PROCEDURE CODE, 1908 (ACT NO. 5 OF 1908 ) – ORDER 9, RULE 13. For Petitioner - M/s. Samareshwar Mohanty & P.R.Sutar. For Opp.Parties - M/s. Dr.A.K.Rath, A.K.Panda, A.K.Nath & S.S.Dash. S. PANDA, J. In this writ petition, the petitioner has challenged the order dated 29.9.2008 passed by the learned District Judge, Cuttack in CMA No.115 of 2006 allowing an application for condonation of delay and setting aside the ex parte order passed by the said court in OS No.1 of 2006 granting Probate of Will in favour of the present petitioner. 2. The facts leading to the present writ petition are as follows: The petitioner filed a Test Case before the learned District Judge, Cuttack for grant of Probate of Will in his favour by one Gopinath Das son of late Kasinath Das. He died on 25.9.2003. The Will in question was annexed to the said application. It was stated that the same was the last Will of the testator-Gopinath Das who was residing at Bhasakosh Lane, Cuttack. The execution of the Will was made on 6.10.2002 in the presence of witnesses who duly attested the Will. The petitioner is the sole executor named in the Will and the opposite parties are near relations of the testator. General citation had been issued under Section 283 of the Indian Succession Act calling upon the persons to appear and file objection, if any. The said case was registered as Test Case No.22 of 2004. In pursuance of issuance of general citation, the opposite parties appeared through advocate and filed their written statement denying the claim of the petitioner. The court below appointed the petitioner as administrator of the estate at the initial stage. However, on the objection being filed by the opposite parties, he was discharged and the opposite parties were appointed as the administrator of the estate vide order dated 7.10.2005 with a direction to maintain and submit accounts each year. After obtaining permission from the court, the parties disposed of certain properties vide registered sale deed dated 20th January, 2006. However, since the opposite parties did not take any step in the proceeding, they were set ex parte on 25.4.2006 and the said case was converted to an Original Suit and renumbered as O.S No.1 of 2006. The petitioner as plaintiff examined himself as P.W.2 and one of the attesting witnesses as P.W.1 and filed some documents which were marked Exts.1 and 2. After hearing the parties, the court below decreed the suit ex parte on 12.5.2006 granting Probate in favour of the plaintiff in respect of the Will executed by Gopinath and vacated the order of appointment of administrator pendente lite of the estate. 3. The power-of-attorney holder of opposite parties filed an application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code for setting aside the ex parte order dated 12.5.2006 passed in O.S. No.1 of 2006 with the allegations that the present petitioner was working in the house of late Gopinath as a servant and taking advantage of his closeness and the old age of Gopinath, he fabricated and manufactured a forged Will in his favour. After the death of Gopinath, he filed a case for grant of Probate. The opposite parties appeared and filed their written statement contesting the case. However, as the advocate looking after the case on behalf of the opposite parties did not take any step in the case, they were set ex parte. When they came to know about the ex parte order on 21.6.2006 at Nanpur after receiving the notice from the Land Acquisition Officer, they filed an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 13 of the Civil Procedure Code which was registered as CMA No.115 of 2006. 4. The petitioner filed an objection to the said application denying the allegations of the power of attorney holder of the opposite parties and taking a specific stand that the application under Order 9 Rule 13 of the Civil Procedure Code was not maintainable for setting aside the ex parte order under the Indian Succession Act. The opposite parties never came forward with sufficient cause which prevented them to appear while the matter was called for hearing and the opposite parties had full knowledge about the order dated 12.5.2006 when the ex parte order was passed. As the opposite parties did not take any step within the statutory period, they were set ex parte. Therefore, the ex parte order need not be set aside by condoning the delay. The petitioner challenged the appearance of the opposite parties in the proceeding, as the opposite parties had filed an application under Order 1 Rule 10 of the Civil Procedure Code before the learned District Judge to implead them as parties in Test Case No.22 of 2004. Since the said proceeding was a proceeding under the Indian Succession Act, they appeared by filing a caveat as provided under Sections 280 and 286 read with Schedule-V of the Indian Succession Act to resist the probate proceeding. The application was rejected by the court below on 19.2.2005. Therefore, they had no locus standi to oppose the grant of Probate in favour of the petitioner. 5. However, the learned District Judge, after hearing the parties, allowed the application and set aside the ex parte order by condoning the delay in filing the application. Hence this writ petition. 6. Learned counsel appearing for the petitioner submitted that since the point of law raised by the petitioner against setting aside of the ex parte order had not been taken into consideration by the learned District Judge, the impugned order is liable to be set aside. He further submitted that the application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code is not maintainable in a probate proceeding for setting aside the ex parte order and in view of the specific provisions contained in the Indian Succession Act for setting aside the ex parte order, the general provision of the Civil Procedure Code is not applicable. Therefore, the impugned order is liable to be reversed. In support of his contention, he cited the decisions in the case of Bindheshwari Pandey v. Kari Devi reported in AIR 1976 Patna 186, Mst. Puinbasi Majhiani v. Shiba Bhue and another reported in AIR 1967 Orissa 41 and Mst. Tribeni Kuer and another v. Shankar Tiwari and others reported in AIR 1971 Patna 391. 2 7. Learned counsel appearing for the opposite parties submitted that the rules laid down under Order 9 Rule 13 of the Civil Procedure Code are procedural in nature. Section 141 of the Civil Procedure Code provides that the procedure laid down in the Code of Civil Procedure in regard to suits shall be followed as far as it can be made applicable to all proceedings under the Code of Civil Procedure. Therefore, the court below rightly passed the impugned order. Hence, the same need not be interfered with. In support of his submissions, he cited the decisions reported in 1984 (1) CHN 182 (Smt. Anima Dutta v. Bhanumati Dutta & another) and AIR 1985 Calcutta 275 (Bimalakanta Sengupta v. Sarojini Koner). He also cited a decision of this Court in the case of Janardan Jena v. Sara alias Saraswati Dei reported in 1991 (II) OLR 525 wherein it has been held that though a proceeding for Probate or Letters of Administration is not a suit, the proceeding is to be treated as a regular suit and the provisions of Code of Civil Procedure are applicable to such proceeding. 8. Law is well settled that every Court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and inherent power in its very constitution all or such power as may be necessary to do the right and to undo a wrong in course of administration of justice. The inherent power is to be exercised where the prejudice would be such that the same cannot be eradicated. The inherent power can be exercised by a Court to recall or set aside its earlier order and an ex parte judgment which was rendered in ignorance of the fact that the estate was not represented. The Courts have power to pass an order as may be necessary for ends of justice or to prevent the abuse of process of court as held by the apex Court in the case of M/s. Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of Income Tax, New Delhi reported in AIR 1977 SC 1348. 9. Further contention of the learned counsel for the petitioner is that the opposite parties did not file a caveat as required under the Indian Succession Act is not sustainable as opposite parties filed an application before the learned District Judge though the nomenclature of the said application was not as required by the Indian Succession Act. The Court has the jurisdiction to accept the said petition and can pass appropriate order. It is not appropriate that if a party is entitled to a relief, his application is not to be rejected by a court of law because of the incorrect nomenclature of the said application. 10. Admittedly, in the present case, the opposite parties did not appear when the matter was called on for hearing. Consequently, the Court proceeded with the case ex parte and the decree was made directing probate to be issued in favour of the present petitioner. It has specifically been provided under Order 9 Rule 13 of the Civil Procedure Code that in a case in which a decree is passed ex parte against the defendant, he may apply to the court by which the decree was passed for an order to set it aside. If the Court is satisfied that the grounds were not duly served on or he was prevented by sufficient cause from appearing when the suit was called on for hearing, the court has to make an order setting aside the decree passed against him. Since the present opposite parties contended that they had been prevented by sufficient cause from appearing when the matter was called on for hearing and the said plea of the opposite parties was accepted by the court below as sufficient cause for setting aside the ex parte decree, this Court fails to see why such an application cannot be maintained 3 under Order 9 Rule 13 of the Civil Procedure Code. Therefore, this Court is of the view that the rules laid down under Order 9 relating to hearing of a case ex parte as well as an application for setting aside an ex parte decree are matters of procedure i.e. applicable to a proceeding under the Indian Succession Act also. Hence, it cannot be said that the Court has to exercise his jurisdiction only under Section 263 of the Indian Succession Act. The provisions of Indian Succession Act are also very clear that in the matters of procedure, the Code of Civil Procedure must apply. Part IX of the Indian Succession Act, as indicated by the heading, deals with ‘Probate, Letters of Administration and Administration of Assets of Deceased’ and comprises of Sections 217 to 369. Section 217 provides as follows: “217 Application of Part – Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letter of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this part.” 11. Chapter I of Part IX is headed “Grant of Probate and Letters of Administration”. Chapter II deals with “Limited Grants”. Chapter III is heading “Alternation and Revocation of Grants” and comprises of Ss.261, 262 and 263. Section 261 deals with what errors may be rectified by Court. Section 262 provides that where a codicil is discovered after the grant of Letters of Administration with a will annexed, it may be added to the grant on due proof and identification. Section 263 which deals with the revocation or annulment of grant of Probate or Letters of Administration for just cause is extracted below: “263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause Explanation-Just cause shall be deemed to exist where- (a) the proceeding to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, thought such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.” 10. Illustrations (i) and (ii) only are relevant for our purpose in this case and are as under: (i) The Court by which the grant was made had no jurisdiction (ii) The grant was made without citing parties who ought to have been cited” 4 12. This Section has not made any provision for setting aside of an ex parte order granting probate on sufficient cause being shown by the defaulting party for its absence at the hearing of the case. It cannot be said that in this case the proceedings were defective in substance. 13. Chapter IV of Part IX of the Indian Succession Act deals with the procedure to be followed and the Chapter heading is “of the practice in granting and revoking probates and Letters of Administration.” Sections 266, 268 and 295 of Chapter IV are important for our purpose: 266. District Judge’s powers as to grant of probate and administration.- The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. 268. Proceedings of District Judge’s Court in relation to probate and administration- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. 295. Procedure in contentious cases- In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 14. In view of the above provisions, the right to have a grant of Probate or Letters of Administration revoked is concerned, the grounds may have been defined exhaustively under Section 263 of the Act. Therefore, setting aside an ex parte decree is not coming under the said provision and only the procedure laid down in the Code of Civil Procedure was available to a party in a probate proceeding for setting aside such an ex parte decree. The Calcutta High Court in the case of Smt. Anima Dutta v. Smt. Bhanumati Dutta & another reported in 1984 (i) CHN 182 has held as follows: “In our opinion, in view of the clear provisions of Ss.268 and 295 of the Indian Succession Act, and S.141 of the Code of Civil Procedure, the Court has to follow the procedure laid down in the Code of Civil Procedure for the purpose of granting probate but the substantive rights are all governed by whatever has been provided by the Indian Succession Act. Section 263 does not deal with the procedure but has given certain rights to have the grant of a probate or letters of administration revoked in certain circumstances. Section 263, in our opinion, has got nothing to do with the case where a grant of probate has been made ex parte and an application has been made for setting aside of that ex parte order by a party who alleges that he was prevented by sufficient cause from appearing at the hearing. This will be governed by the provisions of Order 9 Rule 13 of the Code of Civil Procedure and there cannot be any question of conflict between the provisions of S.263 and the provisions of the Code of Civil Procedure in this regard. 5 15. In the case of Mrs. Tribeni Kuer & another v. Shankar Tiwardi & others reported in AIR 1971 Patna 391 the question of applicability of Order 9 Rule 13 of the Civil Procedure Code to a probate proceeding came up directly for consideration. The Division Bench of the Patna High Court held that the provisions of Order 9 Rule 13 of the Code of Civil Procedure were applicable to a probate proceeding. 16. In view of the above discussions and as substantial justice has been done by the learned District Judge allowing the application of the opposite parties to contest the case, this Court is not inclined to interfere with the impugned order because the dispute between the parties has to be decided on its own merits in accordance with law and not on technical grounds. The writ petition is accordingly dismissed. Writ petition dismissed. 6