IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1029 of 2006 CHANDRA MADHAV MISHRA & ANR Versus BRAJ KISHORE MISHRA & ORS ----------- 3 18.11.2008 Heard counsel for the petitioners and counsel for the opposite party No.1. This Court noticing the infirmity in the impugned order had issued notice to the opposite parties after taking into consideration the following facts. “Petitioners are defendants No.3 and 4 in the Partition Suit in the Court below. The trial Court framed issues (Annexure-2). It is petitioners’ contention that issues No.5 and 6 relate to the validity and enforcement of a will for which a Probate Case is pending before this Court. It is his submission that the said issue cannot be decided as the jurisdiction to decide the said is in the Probate Court and not with the Civil Court. He submits that the trial Court erred in holding that these are subsidiary issues. He submits that Civil Procedure Code recognizes issues and makes no distinction between main issue or subsidiary issue. A Civil Court is obliged to decide all issues. The two issues being beyond its competence and pending before this Court in the Probate Case, those issues have to be struck out before trial begins.” Counsel for the petitioners now submit that when the opposite - 2 - parties have appeared before this Court, they have realized the position in law and in fact they had also filed an application, I.A. No. 5116/08 in which in paragraph No.8 they have made a submission for giving up issue Nos. 5 and 6. Paragraph No.8 of the said I.A. in fact reads as follows:- “under the circumstances the Issue Nos. 5 and 6 contained in Annexure-2 being beyond the scope of the said Partition suit and falling exclusively within the Testamentary jurisdiction of this Hon’ble Court may be struck out and stay order vacated.” Learned counsel for the opposite party accepts this fact and in fact also supports this application, I.A.No.5116 of 2008 wherein a prayer has been made that this Civil Revision application be disposed of by directing that the Issue Nos. 5 and 6 as contained in Annexure-2 shall be struck out . In view of the aforementioned submission made by the counsel for the parties, the impugned order is set aside and this Civil Revision application is allowed with a direction that the Issue Nos. 5 and 6 as contained in Annexure-2 shall stand struck off and the court below will proceed to decide the suit only on the remaining issues. Bibhash (Mihir Kumar Jha, J.)