1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 718 OF 2009 M/s Bharat Petroleum Corporation Ltd. ... Applicant/Petitioner Vs. Mr. Meherwan Nadirshaw & Ors. .... Respondents. ..... Mr. S.R. Page, for the Applicant. Mr. P.M. Shah, for the Respondent No.3. ..... CORAM: S.C. DHARMADHIKARI,J. DATE : 9 th APRIL, 2010. P.C. 1. Heard Shri Page appearing on behalf of the Petitioners. 2. Shri Page submits that the lower appellate court by the order under challenge delivered on 8th August, 2009 firstly erred in allowing the Respondent Appellant to produce the document viz. probate of the Will of Mrs.Dolly J. Gazdaron record, and secondly, the lower appellate court erred in reversing judgment of the trial court dismissing the suit of the Respondent for eviction of the Petitioner/Defendant from the suit premises. 3. Shri Page submits that if the application made before the lower appellate court is perused it would be apparent that the suit in question was dismissed by the trial court on 26th July, 2004. 4. If the Petition for probate is filed on 17th June 2004 and 2 probate was granted on 5.11.2004, the trial court was in no error in dismissing the suit. In any event application for brining the probate on record was made belatedly on 9th July 2009 and in the Lower Appellate Court. The Petitioners had in their affidavit-in-reply filed to the application made for bringing the probate on record had pointed out that the Xerox copy of the probate cannot be taken on record. Further, it was pointed out that the Will is dated 20.6.1979 and the Testator died on 10.6.1982. The Application for Probate is filed allegedly filed on 17.6.2004 which is subsequent to the filing of the eviction suit. After the death of the testator, the Respondent/Appellant did not take care to apply for probate of the Will for 22 years. In such circumstances, and when the defence of absence of probate has been raised in the written statement filed in the year 2000, then, this is not a case of exercise of due diligence by the Respondent/landlord. In such circumstances, the lower appellate court was not justified in looking into the said document and on that basis decreeing the suit of the landlord. The decree of the lower appellate court is erroneous and must be quashed and set aside. 5. It is not possible to accept this contention. The lower appellate court in paragraph 27 of the order under challenge has held that the trial court dismissed the suit on the basis that the suit notice is not legal and valid. The suit was dismissed because the Plaintiffs have failed to obtain the probate prior to the filing of the suit. The lower appellate court found that 3 when the suit was pending before the trial court, the Respondent/Plaintiff/landlord applied for probate from this court. Though they have obtained probate after dismissal of the suit, but considering that the suit was dismissed on a technical ground, the lower appellate court allowed the application for additional evidence and took on record the probate of the Will of the deceased Dolly J. Gazdar. The lower appellate court referred to the relevant provisions of the Indian Succession Act, 1925 rightly held that the landlord’s suit could not have been dismissed on a technical ground. That dismissal has resulted in miscarriage of justice. Further, the trial court after having accepted the case on merits should not have dismissed the suit on this ground is the view taken by the lower appellate court. 6. For the reasons assign in both the orders delivered on the same date and particularly in paragraph 27 thereof, I am of the opinion that the order under challenge does not suffer from any error of jurisdiction nor vitiated by material irregularity resulting in manifest injustice so as to call for interference in my jurisdiction under section-115 of the Code of Civil Procedure. On the other hand on a technical ground the suit for eviction could not have been dismissed. That error having been corrected by the lower appellate court and substantial justice has been rendered. the Civil Revision Application fails and accordingly it is dismissed. No costs. (S. C. DHARMADHIKARI, J.) 4