1 RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO. 661 OF 2006 IN NOTICE OF MOTION NO......... OF 2006 IN NOTICE OF MOTION NO. 16 OF 2006 IN MISC. PETITION NO. 70 OF 2005 IN TESTAMENTARY PETITION NO.4 OF 2003 R.V. Bhasin (Advocate in person) ] 1/3, Brady's flats, S.B. Road, ] Colaba, Mumbai - 400 005. ] Appellant V/s. Sunilkumar Kapur, ] S/o. Late Mr. Ramkumar Kapur, ] 704 - Sea Green, Seven Bunglows, ] Andheri (W), Mumbai - 400 061. ] Respondent Mr. R.V. Bhasin, Appellant in Person Mr. A.A. Joshi a/w Mr. Sanjay Jain i/b M/s. L.J. Law for respondent CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ DATE : 12th January, 2010 10.app661-06 2 ORAL JUDGMENT: [PER B.H.MARALAPALLE, J.] 1. This intra court appeal arises from the order dated 07.07.2006 passed in Notice of Motion No. 16 of 2006 in Suit No. 17 of 2003 arising from Petition No. 4 of 2003. The exparte decree of dismissal of Caveat passed on 6th November, 2003 has been set aside by condoning the delay caused in filing the Notice of Motion and the original Plaintiff / present Appellant was directed to pay costs quantified at Rs. 25,000/-. Prayer (a) and (b) to the exclusion of prayer (c), in the notice of Motion were allowed by the impugned order. 2. The Appellant had filed Petition No. 4 of 2003 in the Original Side of this Court for getting the Probate of Will and Codicil left behind by his close friend Shri. Ram Kumar Kapur who died on 02.10.1998. The testator was survived by two children i.e. daughter by name Ms. Sonia Kapur and son by name Mr. Sunil Kapur – both major. Both the children were cited in the petition and as per the Petitioner, the citation was served. However, only the daughter, on serving of the citation, had filed Caveat in the Probate Petition. Thereafter, the Plaintiff took out Chamber Summons No. 474 of 2003 and prayed for dismissal of the Caveat. 10.app661-06 3 In the Chamber Summons, Ms. Sonia had appeared in person and on 06.11.2003, when the Chamber Summons came up before the learned Single Judge, she remained absent and had not filed any reply to the Chamber Summons. It was under these circumstances, the learned Single Judge passed the following order: “ On the last occasion i.e on 26.6.2003, it was specifically directed that the Defendant was given last chance to file reply to the Chamber Summons. No reply is filed. Today also the Defendant is not present. She is not represented by Advocate. Under the circumstances, the Chamber Summons is allowed. The Caveat filed by the Defendant on 24.03.2003 is dismissed. No oder as to costs.” 3. On 29.11.2003, the Probate was issued. On 01.03.2004, Ms Sonia died and Notice of Motion No. 16 of 2006 was taken out on or about 01.03.2006 i.e after two years of demise of Ms. Sonia. The Notice of Motion, as has been clarified by the learned counsel for the Respondent, was filed under Order IX, Rule 13 of C.P.C to set aside the order of exparte decree which resulted in grant of probate. 4. It is not much in dispute between the parties that Shri. Ram Kumar Kapur had executed his Will on 05.09.1994. The Probate 10.app661-06 4 Application was filed before this Court on 20.12.2002 and the citations have been served on 07.03.2003. On 20.03.2003, the Caveat was filed by late Sonia and in support thereof, she had filed her affidavit on 24.03.2003 and in spite of adjournments on 3 different occasions, she had not filed reply in Chamber Summons No. 474 of 2003. 5. It was submitted by Mr. Bhasin - the appellant in person that at the first instance, delay caused in taking out the Notice of Motion for setting aside the exparte decree was not explained and therefore, the learned Single Judge was in error to condone the delay. He further submitted that Ms. Sonia served with the notice and she appeared on 26.06.2003, after she had filed caveat and when the Chamber Summons No. 474 of 2003 was taken out, on her request, by way of last chance, three weeks’ time was granted to file reply / affidavit and she did not do so. On 06.11.2003, again she remained absent and therefore, the Court was justified in allowing the Chamber Summons and dismissing the Caveat filed by Ms. Sonia. As per Mr. Bhasin, there was no procedural error committed when the order dated 06.11.2003 was passed and there was no requirement in law or under the High Court (Original Side) Rules 10.app661-06 5 to issue a fresh notice to Ms. Sonia. In short, it was submitted that the Notice of Motion did not make out any reasons so as to satisfy the requirements of Order IX, Rule 13 of C.P.C to set aside the exparte decree and that too, at the behest of the present Respondent who himself was served with the citations and did not file a caveat. Mr. Bhasin, also submitted that the observations made in the impugned order attributing some failures, personally as well as professionally, against him, were uncalled for and there was no material before the Court when the impugned order was passed to hold that the Appellant had deliberately suppressed any information or he had deliberately failed to act as a responsible member of the Bar or a family friend of the testator. As per Mr. Bhasin, there was no material before the learned Single Judge to come to the conclusion that deceased Sonia suffered from mental illness or she was of unsound mind and in any case, such a ground could not have been raised by her brother after her demise and more so, when on three different occasions, she had appeared before this Court, sought adjournments to file reply and did not raise any plea of her mental sickness or unsound mind. In support of these contentions, Mr. Bhasin relied upon the following 10.app661-06 6 decisions: 1. AIR 1962 SUPREME COURT 361 Ramlal & Ors Vs Rewa Coalfields Ltd 2. JT 1997 (8) S.C. 189 P.K. Ramchandran Vs State of Kerala & Anr 3. AIR 1985 SUPREME COURT 500 Satya Pal Gopal Das Vs Panchubala Dasi He also submitted that Order IX, Rule 13 does not provide for costs being levied against the exparte decree-holder. 6. Mr. Joshi instructed by Mr. Jain, the learned counsel for the respondent has supported the impugned order setting aside the exparte decree. On the point of condonation of delay, he relied upon the decisions in the case of N. Balakrishnan Vs M. Krishnamurthy : (1998) 7 Supreme Court Cases 123 and submitted that once the learned Single Judge had exercised his discretion to condone the delay, there was no reason for the Appellate Court to find fault with the same or cause interference. Mr. Joshi, the learned counsel also referred to the long standing practice followed by this Court on the Appellate Side as well as the Original Side that when a party in person is not served with the notice and the case is listed before the Court, the case is adjourned so as to enable the party to remain present on the given date rather 10.app661-06 7 than proceeding to decide the case exparte. As per Shri. Joshi, in keeping with this long standing practice, it was not proper for the learned Judge to allow the Chamber Summons and to dismiss the Caveat on 06.11. 2003 when Ms. Sonia was not present before the Court. Mr. Joshi pointed out that on 26.06.2003, Ms. Sonia was granted three weeks’ time to file reply to the Chamber Summons and after three weeks, the case was not listed before the Court. The case came to be listed on 06.11.2003 without notice to the party in person either by the Court or by the present Appellant. Dismissal of the Caveat results in serious implications, as is well known and therefore, it was necessary for the Court to call upon the plaintiff to issue notice to the party in person so as to provide an opportunity to deal with the Caveat on merits as well as the Chamber Summons and specially when the contestant was one of the children of the testator. Mr. Joshi also referred to the affidavit dated 31.03.2003 filed by the original plaintiff, the affidavit of Mr. Sunil Kapur affirmed on 13.08.99 and the letter dated 18.01.2002 which was a notice issued by the original plaintiff on behalf of Mr. Sunil Kapur. Reliance was also placed on the affidavit of Mr. Bhasin's clerk who had served the citation. As per Mr. Joshi, all 10.app661-06 8 these documents collectively went to show that Mr. Bhasin was personally aware about the mental conditions of Ms. Sonia and that she was a person of unstable / unsound mind and therefore, it was his duty to bring the said fact to the notice of this Court on 06.11.2003, rather than pressing for an exparte order. In fairness to the learned counsel for the Respondent, he has not pressed for the order imposing costs of Rs. 25,000/- or for any personal observations recorded against Mr. Bhasin as a member of the Bar. By placing reliance on Order XXII, Rule 10 and section 146 of C.P.C, it was submitted that prayer clause (c) of the notice of motion ought to have been allowed by the Trial Court. 7. The Notice of Motion has been allowed mainly on two grounds i.e a) the exparte order suffered from material irregularities in observing the procedure and that by itself was a sufficient reason to set aside the exparte order, more so, when the exparte order having drastic consequences has been made without contest, the Court leans in favour of allowing the contest so that the persons or parties involved get an opportunity to put forth their case on merits, b) the original plaintiff failed to disclose to the Court the relevant facts which were within his knowledge regarding the 10.app661-06 9 mental conditions of Ms. Sonia. As an Appellate Court, even if we find that the impugned order is sustainable on any one ground, the Appeal must fail. 8. Rule 13 of Order IX of CPC states that in any case, in which the decree is passed exparte against the Defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided further that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had knowledge of the date of hearing and had sufficient time to appear and answer the Plaintiff's claim. 9. On the issue of delay, it was submitted that the issuance of probate on 29.11.2003 was learnt by the Applicant in the Notice of Motion when he appeared before the Delhi High Court in April 2005 for the first time and thereafter he came to Mumbai, tried to gather 10.app661-06 10 information with the assistance of the Advocate. In October 2005, he moved Misc. Application No. 70 of 2005 under Section 263 of the Indian Succession Act, 1925. In December 2005, he could go through the record and thereafter, as per the legal advice received, he filed a separate application to set aside the exparte order i.e he filed Notice of Motion No. 16 of 2006 on 01.03.2006. In the case of N. Balkrishnan (Supra), the Supreme Court in para 9 stated thus : "It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay 10.app661-06 11 afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court." The above view has been reiterated by the Supreme Court in case of M.K. Prasad Vs. P. Arumugam : (2001)6 Supreme Court Cases 176 and in case of Ram Nath Sao Vs. Gobardhan Sao : (2002)3 SCC 195. In the impugned order, the learned Trial Judge referred to the submissions as recorded herein above made by the applicant in the Notice of Motion and held that the power of the Court to condone the delay has to be used for advancement of justice and though the explanation for delay as given by the applicant, could not be termed as full proof, nevertheless, under the facts and circumstances of the case, it could be accepted by showing sufficient cause for condonation of delay. We do not find any fault in the discretion used by the learned Judge and we hold that the delay caused in taking out Notice of Motion under Order IX, Rule 13 of C.P.C has been rightly condoned. 10. On scanning of the record, the learned Tiral Judge observed and rightly so, that the Chamber Summons was first placed before the Court on 09.04.2003 and was adjourned to 16.04.2003. On 28.04.2003, though the matter was not on board, it was taken on board so as to be listed on 30.04.2003 but on 30.04.2003, it was 10.app661-06 12 not listed again and instead, it appeared on 26.06.2003 when Ms. Sonia was present as party in person. It was adjourned for three weeks as a last chance. After a period of three weeks from 26.06.2003, it was not listed on board. However, it appeared on 06.11.2003 but without any motion being moved either by Mr. Bhasin or the party in person and on that day, the exparte order came to be passed which has been set aside by the impugned order. It is thus, clear that Ms. Sonia had no notice about the Chamber Summons or her Caveat being listed before the Court on 06.11.2003. It appears that the same thing was not brought to the attention of the Court and instead, the Court was persuaded to proceed with the Chamber Summons exparte. The trial Court was, therefore, had sufficient groups to hold that there was no notice served on Ms. Sonia so as to appear on 06.11.2003 in the Chamber Summons / Caveat and therefore, she was prevented by sufficient cause from appearing before this Court. Section 284 of the Indian Succession Act, 1925 provides for filing of caveats against the grant of probate and the caveat is required to be made in the form set forth in Schedule V. As per section 285 of the said Act, no proceeding shall be taken on a 10.app661-06 13 petition for probate after a caveat against the grant thereof has been entered with the Court, until after such notice to the person by whom the same has been entered as the Court may think reasonable. Section 286 states that the Court shall not grant probate in any case in which there is contention as to the grant, or in which it otherwise appears to the court that the probate ought not to be granted. The word “Contention” means the appearance of anyone in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. Thus, on the caveat being entered, raising the contention as to the grant of probate, the procedure prescribed under Section 288 must follow i.e the caveat is required to be dealt with on merits and it would not be in keeping with the scheme of the Indian Succession Act dismissing the caveat by allowing the chamber summons on the ground that on a given date, the caveator / contestant remained absent. As per Rule 401 of the Bombay High Court (Original Side) Rules, any person intending to oppose the grant of probate is required to file a caveat within 14 days from the service of citation upon him or within such shorter time as the Judge in Chamber may 10.app661-06 14 direct and in terms of Rule 402, an affidavit in support of the caveat is required to be filed within eight days from the date of filing of the caveat. On the face of all these provisions of the Indian Succession Act, the Trial Court should not allow the Chamber Summons to dismiss the Caveat so lightly and only on the ground that on a given date, the Caveator remained absent. The learned single Judge, therefore rightly held that the Chamber Summons could not have been allowed by the order dated 06.11.2003 for the reasons that the deceased did not remain present before the Court on that day. The first ground set out in the impugned order makes out just reasons to meet at least one of the requirements of Order IX, Rule 13 of CPC and therefore, the impugned order on that ground passed, requires no interference. 11. So far as the second ground that is regarding mental condition of Ms. Sonia is concerned, we have noted from the record that she had appeared before the Court in the Chamber Summons on 09.04.2003 and 26.06.2003. She also remained present before the Court on 12.05.2003 and the office was directed to give inspection of the original Will to the Defendant / Caveator within one week and thereafter the Defendant / Caveator to raise objection if any. 10.app661-06 15 The office was directed to list the case after three weeks and probably, as the consequence thereof, the case was listed on 26.06.2003 when Ms. Sonia was present before the Court. On all these three occasions, she did not whisper anything about her mental condition or that she was in a paranoid condition. After two years of her demise, the applicant i.e her brother in the Notice of Motion for the first time raised a plea that she was mentally unsound. At the same time, the Notice of Motion was not taken out under Order XXXII of C.P.C as has been conceded by the learned counsel for the respondent. In the impugned order, reference has been made to certain affidavits as well as the letters so as to attribute personal knowledge to the appellant about the mental conditions of Ms. Sonia. The very first document is the affidavit dated 13.08.99 by Mr. Sunil Kapur. In Para 7 of the said affidavit, he stated thus : "My sister too for reasons of family circumstances is almost in a paranoid state." Next in sequence is the letter dated 18.01.2002 which was admittedly addressed by the present applicant to Shri. D.S. Paavariya, Additional District Judge, District Court, Tis Hazari, New 10.app661-06 16 Delhi. The letter was written by the present appellant under instructions of Mr. Sunil Kapur and the relevant portion states thus: "In addition another alleged heir i.e Mrs. Sonia Kapoor does not exist. Ms. Sonia Kapoor is unmarried and is presently in a very bad state of mental health. None is able to reach her." The third document in sequence is the affidavit dated 31.03.2003 filed by Shri. Bhasin in Testamentary Petition No. 4 of 2003. He stated thus: "In course of the writ petition proceedings pending in Delhi High Court, son of Late Mr. Ram Kumar Kapur i.e Sunil Kapur also filed his own independent affidavit a copy of which is also annexed as Exh. B. In this affidavit, Mr. Sunil Kapur has declared that his sister who is the respondent above has been paranoid or has been in an unstable state of mind, which fact should be specially taken note of." The last document is the affidavit of service filed by the clerk of Mr. Bhasin and the relevant portion thereof reads thus : "................I was told by the watchman that she invariably leaves at about 6.00 AM everyday and may or may not return on most days. Today by way of exception, she happened to come to the building at about 2.00 PM. Generally she comes in the late hours after 12.00 PM. She was described by the watchman as a MAD woman. On my further enquiries including with her brother now residing at Andheri, I was told 10.app661-06 17 that she is drug addict and is leading a very sorry life. Even I have seen her in that state of obvious appearance on 05.04.2003.: 12. All the above quoted statements indicated that Ms. Sonia was in an unstable mind or in a very bad state of mental health or in a paranoid state at the relevant time. The fact indeed is that she appeared before this Court on three different dates as noted herein above, participated in the proceedings by asking for time to file affidavit in reply to the Chamber Summons and also for inspection of the original record and therefore, it would be improper to record a judgment as to the mental condition of the person when she was no more and it is well settled that to record such findings, opinion of the experts in the field is material. At the behest of her successor i.e her brother, it would not be appropriate to record any conclusion that Sonia did not remain present before this Court on 06.11.2003 because she was mentally unsound. At the same time, it would not be safe to attribute any malice to Mr. Bhasin on his failures as a family friend or the learned member of the Bar. On this count, we are therefore, not impressed by the second reason on which the Notice of Motion was allowed. 13.In the impugned order, there are some personal remarks / 10.app661-06 18 observations made against Mr. Bhasin such as "a) In my opinion, Mr. Bhasin was aware of this and therefore, in order to obtain from the court an order in his favour, without any contest, he suppressed the information from the Court and b) it appears that the original plaintiff Mr. Bhasin suppressed from the Court deliberately the material and relevant facts in order to obtain favourable order". In the circumstances and the facts as discussed hereinabove, , we are satisfied that these observations are required to be expunged as has been prayed for by the Appellant. 14.Notice of Motion No. 16 of 2006 had three prayers i.e prayer clauses (a), (b) and (c). Prayer clause (c) reads thus: "that this Hon'ble Court be pleased to direct the Plaintiff to amend the Plaint in the above Suit by deleting the name of the deceased, Ms. Sonia Kapur the Caveator and bring on record her legal heir i.e the Applicant as the Defendant in the above matter as per the schedule annexed to the above Notice of Motion. By the impugned order, the relief prayed for in prayer clause (c) came to be declined and consequently, the prayer of the applicant to bring him