PROBATE
Petition, its withdrawal and defence in civil suit: permissibility
In
the light of principles of Order 12 Rule 6 of Code of Civil Procedure
Though,
it is no longer in dispute that the principles of Code of Civil Procedure shall
be applicable in a testamentary cases preferred by the Executor or beneficiary
of a Will, albeit, in essence, the basic provisions, contextually are
encapsulated in Indian Succession Act 1925. The testamentary proceedings and
judgments rendered in such a petition shall be judgment in rem and hence,
it is distinguished with plethora of other proceedings, which relates to and
shall only confine to and between the parties to the lis.
Therefore,
whether application for seeking judgment on the basis of admissions as per the
principles under Order 12 Rule 6 of Code of Civil Procedure with other
ancillary issues predicated on purported withdrawal of probate petition shall pass
muster? In other words, whether the petitioner in probate petition after
notice of the civil suit by preferred by the respondent therein, if has
withdrawn the probate petition unconditionally, whether that should come in
the way of defence of the respondent in
the suit or not is a moot point? In other words, whether a defendant in a civil
suit should be precluded from raising a plea of a Will which the defendant had
propounded and was subject matter of the probate petition preferred by such
defendant and withdrawn unconditionally, after receipt of notice of a civil
suit from a civil court has been discussed, deliberated, probed, and findings
have ben recorded by the hon’ble Delhi High Court. Given the magnitude and importance that is
entailed in the context it is imperative to find the conclusion. The whole
gamut of law as regards plea of res judicata and permissibility of raking up
the issues in probate petition in defence to a civil suit filed has been dealt
with herein comprehensively. The law on each of the relevant aspects herein has
been delved in greatly, analysed and findings are recorded by the hon’ble Delhi
High Court so as to settle the issue, albeit, quite interesting on the face of
it.
It
is in the aforesaid perspective that a recent judgment rendered by hon’ble
Delhi High Court bearing no. CS (OS) 267/2019 captioned as Vandana Sharma Vs
Man Malik, shall be of immense significance.
The
application under Order XII Rule 6 of the Code of Civil Procedure was preferred
by the plaintiff, praying for a decree to be passed in her favour based on the
purported admissions of the defendant, as according to the plaintiff, the defendants
are precluded due to estoppel, acquiescence, waiver, and abandonment of claim
by the defendant in respect of the alleged Will dated 19th June 2018
left behind by the mother of the parties, Late Smt. Kamla Mallick, as the
probate petition preferred earlier by the defendant was withdrawn and cannot be
raked up again in defence.
To
further dwell on the issue, the claim of the parties and submissions raised in
sync with facts of the case as portrayed in the backdrop of law in respect
whereof reliance are placed by the parties shall be necessary.
CLAIM
OF THE PLAINTIFF
Claim of the
Plaintiff in the Plaint:
·
The suit inter alia contained the
prayer for a decree of partition of the property being plot bearing no. D-125,
Saket, New Delhi, 110017, admeasuring 250 Sq. Yards; and plot no. B-887,
Greenfields Colony, Faridabad, Haryana, admeasuring 225.55 Sq. Yards
(hereinafter collectively called ‘suit properties’).
·
The father of the parties, namely Sh.
Gyan Chand Mallick, passed away intestate on 25th July, 1998,
leaving behind the plaintiff, the defendant, and their mother, Late Smt. Kamla
Mallick, as his legal heirs. The property at Saket was mutated in favour of
Late Smt. Kamla Mallick vide letter dated 21st January, 2014 issued by
the DDA, after the plaintiff and the defendant relinquished their share in
favour of their mother, Late Smt. Kamla Mallick.
·
Later, the said property was converted
into freehold, and Conveyance Deed dated 29th May, 2014 was executed by the DDA
in favour of the mother of the parties.
·
As regards another property at
Faridabad, the plaintiff asserts that the said property was originally owned by
the plaintiff, defendant, and Smt. Shanti Devi, the grandmother of the parties,
in equal share. On the death of Smt. Shanti Devi on 24th February, 1994, Late Sh. Gyan Chand Mallick,
being her legal heir, succeeded to her 1/3rd share in the said plot.
As Sh. Gyan Chand Mallick died intestate on 25th July, 1998, his 1/3rd
share was succeeded by the plaintiff,
the defendant, and the mother of the parties, thereby making the share of the
three, as under:
Smt.
Kamla Mallick- 11.12%
Sh.
Aman Mallick- 44.44%
Smt.
Vandana Sharma- 44.44%
·
It is further claimed in the plaint that
in May, 2014, the defendant approached the plaintiff stating that the mother of
the parties is unhappy with him and he has an apprehension that she may
bequeath the entire suit property to the plaintiff. As the plaintiff did not
have any desire to take the share of her brother, the parties, that is the
plaintiff and the defendant, entered into a Memorandum of Understanding dated
05th May, 2014, whereby it was stipulated that in case the mother of
the parties executes any Will with respect to the suit properties, irrespective
of the same, both the plaintiff and the defendant shall own the suit properties
in equal share after the demise of their mother.
·
It is asserted that Late Smt. Kamla
Mallick executed a registered Will dated 27th May, 2014 bequeathing
entire suit properties to the plaintiff herein.
·
It is also asserted that the in June,
2018, the mother of the parties complained to the plaintiff that the defendant
had taken her to the office of the Sub Registrar of Documents and fraudulently
got some documents signed from her without showing the contents thereof to her.
On enquiry, the plaintiff learnt that the defendant had, without the knowledge
and consent of late Smt. Kamla Mallick, dishonestly got executed a Registered
Will dated 19th June, 2018 from her, bequeathing the suit properties
to the defendant.
·
Immediately on coming to know of the
same, Late Smt. Kamla Mallick revoked the said Will dated 19th June,
2018 by way of a Registered Will dated 27th July, 2018, bequeathing
the suit properties equally in favour of the plaintiff and the defendant. The
plaintiff asserts that the defendant, however, started pressurizing and
threatening Late Smt. Kamla Mallick, and taking advantage of her old age, made
her sign certain blank papers and took her to the office of Sub-Registrar to
execute the same.
·
As Late Smt. Kamla Mallick was already
under an apprehension that the defendant may have again got another Will
prepared and executed from her bequeathing the properties in his favour, she
executed another Will dated 22nd November, 2018, revoking all previous Wills,
including the Will dated 19th June, 2018, and again bequeathing the
suit properties equally between the parties, that is the plaintiff and the
defendant. The said Will was duly registered in the office of Sub Registrar of
Documents vide registration no. 1440 in book no. 3 in Volume no. 178 on
pages 75 to 78.
·
In terms of the said Will, the plaintiff
and the defendant being equal owners of the suit properties upon the death of
Smt. Kamla Mallick, are entitled to a declaration of 50% share in the suit
property and the said property is liable to be partitioned equally between
them.
Defence
of the Defendant:
The
defendant filed his written statement asserting therein that Will(s) dated 27th
July, 2018 and 22nd November, 2018 alleged to have been executed by
the mother of the parties, are forged and fabricated. He asserts that Late Smt.
Kamla Mallick was not of sound and disposing mind at the time of the execution
of the said Will(s). He further asserts that he had become the absolute owner
of the property at Saket by virtue of the Will dated 19th June, 2018, which was
the last and final Will of the mother of the parties and had never been
revoked.
LEGAL SUBMISSIONS OF
PLAINTIFF
(In support of application under Order 12
Rule 6 of CPC)
(i)
The defendant cannot be allowed to rely on the Will dated 19th June,
2018, to exclude the right of the plaintiff in the property at Saket, New Delhi.
(ii)
The defendant had filed a petition under Section 278 of the Indian Succession
Act, being PC No. 30/2019, before the learned District Judge, Saket Court, to
seek probate of the Will dated 19th June, 2018.
(iii)
The objections against the grant of the probate was filed by the plaintiff
herein in the said petition. The plaintiff herein had also filed an application
seeking transfer of the said Probate Petition to this court, being TR.P.(C) No.
19/2020 titled Vandana Sharma v. Aman Mallick, before the Delhi High
Court and notice was issued to the defendant vide Order dated 7th
February, 2020.
(iv)
The defendant upon receipt of notice had filed an application under Order XXIII
Rule 1 of the CPC, seeking withdrawal of the Probate Petition pending before
the ld District Judge, Saket, New Delhi. The application was objected to by the
plaintiff. However, the learned District Judge, vide Order dated 16th
July, 2022, allowed the defendant to withdraw his Probate Petition
unconditionally.
(v)
Once the Probate Petition is withdrawn unconditionally, the defendant cannot be
allowed to urge the Will dated 19th June, 2018 as a defence to the
present suit. It is submitted that it would make no difference in law as in
Delhi, probate is not necessary to be obtained. Once the Probate Petition is
filed and then withdrawn, the Will is presumed to have no effect and cannot be
proved or relied upon in other proceedings.
(vi)
Reliance on the judgment of the Supreme Court in Sarguja Transport
Service v. State Transport Appellate Tribunal, M.P., Gwalior & Ors., (1987)
1 SCC 5; that of Delhi High Court in M/s Usha Sales Ltd. & Ors. v.
Smt. Aruna Gupta & Anr. 1982 SCC OnLine Del 236 and in Jiten
Wadhawan v. M.N. Wadhawan {CM(M) 1141/2008, dated 30.09.2008}. Reliance
was also placed on the judgment of the Bombay High Court in Chetan Calvin
Nazareth v. Lena John D Souza, 2021 SCC OnLine Bom 5337.
(vii)
Once the Will dated 19th June, 2018 is deemed to have not been
proved, the plaintiff, whether by virtue of Will dated 22nd November, 2018 or even otherwise, presuming
that Late Smt. Kamla Mallick had died intestate, would be entitled to 50% share
in the suit property. Therefore, the present case is one where a decree on
admission deserves to be passed and the parties should not be made to undergo
the process of a long arduous trial.
Legal
Submissions of the Defendant:
(i)
The withdrawal of the Probate Petition would not act as an estoppel against the
defendant from relying upon the Will dated 19th June, 2018 in the
present suit.
(ii)
The provisions of Order XXIII Rule 1(4) of the CPC do not prohibit a party from
relying upon the same set of facts in defence to a suit filed by another party,
in spite of withdrawal of a suit filed by such party. He places reliance on the
judgement of the Supreme Court in Vallabh Das v. Dr. Madan Lal & Ors.,
1970(1) SCC 761 in support of the said submission.
(iii)
In order to succeed in an application
under Order XII Rule 6 of the CPC, the admission has to be clear and
unequivocal and the present is not such a case. The defendant has raised
defence of a Will and it is for the plaintiff to prove that the said Will was
revoked by the subsequent Will of Late Smt. Kamla Mallick or otherwise was not
genuine. The subject matter of the Probate Petition and of this suit is
different and, therefore, the provision of Order XXIII Rule 1 of CPC would have
no application.
(iv)
Reliance on judgement of the High Court of Kerala in Thomas P. Jacob v. M.G.
Varghese & Ors., 1987 SCC OnLine Ker 3, and the judgment of the High
Court of Patna in Kashi Nath Singh v. Dulhin Gulzari Kuer, 1941 SCC OnLine
Pat 285.
(v)
The provisions of Order XXIII Rule 1 of CPC will have no application as the
present suit has been filed prior to the withdrawal of the Probate Petition by
the defendant. The application filed by the defendant seeking withdrawal of the
Probate Petition, the defendant had clearly stated that the question of
genuineness of the Will dated 19th June, 2018 will have to be determined in the
present suit. Further reliance was placed on the judgment of the High Court of
Punjab and Haryana in Girdhari Lal Bansal v. The Chairman, Bhakra Beas
Management Board, Chandigarh & Ors., 1985 SCC OnLine P&H 49, and on
the judgment of the High Court of Rajasthan in Hari Ram v. Lichmaniya &
Ors., 2003 SCC OnLine Raj 31, in support of his submission.
(vi)
The principles of estoppel, acquiescence or waiver are also not applicable in
the present case.
Analysis
and Findings:
The
contents of the Order XII Rule 6 of the CPC reads as under:-
“6.
Judgment on admissions.—
(1)
Where admissions of fact have been made either in the pleading or otherwise;
whether orally or in writing, the Court may at any stage of the suit, either on
the application of any party or of its own motion and without waiting for the
determination of any other question-between the parties, make such order or
give such judgment as it may think fit, having regard to such admissions.
(2)
Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up
in accordance with the judgment and the decree shall bear the date on which the
judgment was pronounced.”
The
Supreme Court in Karan Kapoor v. Madhuri Kumar, 2022 SCC OnLine
SC 791, explaining the requirements of the above provision has held that a
judgment on admission relying upon the above provision can be passed only where
the admission is clear, unequivocal and impresses the Court to the opinion that
the trial would be futile and the parties are, in fact, not required to undergo
the rigours of a detailed trial due to any admission made by the other party. I
may quote from the judgment as under:-
“23.
Order 12 Rule 6 confers discretionary power to a
court who “may” at any stage of the suit or suits on the application of any
party CS(OS) 267/2019 or in its own
motion and without waiting for determination of any other question between the
parties makes such order or gives such judgment as it may think fit having
regard to such admission.
24.
Thus, legislative intent is clear by using the word
“may” and “as it may think fit” to the nature of admission. The said power is
discretionary which should be only exercised when specific, clear and
categorical admission of facts and documents are on record, otherwise the court
can refuse to invoke the power of Order 12 Rule 6. The said provision has been
brought with intent that if admission of facts raised by one side is admitted
by the other, and the court is satisfied to the nature of admission, then the
parties are not compelled for full-fledged trial and the judgment and order can
be directed without taking any evidence. Therefore, to save the time and money
of the court and respective parties, the said provision has been brought in the
statute. As per above discussion, it is clear that to pass a judgment on
admission, the court if thinks fit may pass an order at any stage of the suit.
In case the judgment is pronounced by the court a decree be drawn accordingly
and parties to the case is not required to go for trial.”
What
is to be probed is as to whether the plaintiff has been able to make out a case
where she is entitled to have the suit decreed in her favour without her
leading any further evidence in the suit, while denying the defendant an
opportunity to lead his evidence.
As
regards the premise of the present application that the defendant, having
withdrawn the Probate Petition filed by him, cannot set up the Will dated
19.06.2018, allegedly executed by the mother of the parties, as a defence in
the suit is illusory. If the defendant is denied the opportunity of setting up
the said Will as a defence, the defendant has, in fact, no defence to offer to
the suit.
It
would first be relevant to note that in Delhi, applying for probate, in terms
of Section 57 read with Section 213(2) of the Indian Succession Act, 1925, is
not mandatory for purposes of acting on a Will. Reference in this regard may be
made to the judgment of the Supreme Court in Kanta Yadav v. Om Prakash
Yadav & Ors., 2019 SCC OnLine SC 920, and of this Court in Kusum
Taneja v. Manik Taneja & Ors., 2024 SCC OnLine Del 6857, Tani
Sandhu Bhargava v. Shumita Didi Sandhu, 2024 SCC OnLine Del 5195, and Rakesh
Kumar Ghei & Anr. v. State & Ors., 2024 SCC OnLine Del 6137.
In
view of the above position in law, the hon’ble Delhi High Cour has deemed it
apt to determine, as to even though there was no necessity for the defendant to
have applied for probate of the Will dated 19.06.2018, having still applied for
the same and having withdrawn that petition, whether the defendant can now rely
upon the said Will as a defence to the present suit.
What
is evident is that the defendant had applied for permission to withdraw the
Probate Petition after the present suit had been filed by the plaintiff herein.
From the Order dated 16.07.2022 passed by the learned Additional District Judge
on the said application, it would be apparent that the effect of the withdrawal
of the Probate Petition was left to be decided by this Court where the present
suit was pending.
In
Chetan Calvin Nazareth (supra), the High Court of Bombay has held
that a Probate Petition once filed cannot be allowed to be withdrawn. In the
present case, the Probate Petition already stands withdrawn, and the issue
before this Court is the effect of such withdrawal on the defence of the
defendant in the present suit. The said judgment, therefore, is not relevant to
the issue to be determined by this Court.
The
reliance on the judgment of Delhi High Court in Jiten Wadhawan (supra),
by the plaintiff to the effect that, once, a Probate Petition is withdrawn, the
Will cannot be set up even as a defence in the suit. It was observed by the
Delhi High Court that the said submission cannot be accepted. The Supreme Court
in Kandapazha Nadar & Ors. v. Chitraganiammal & Ors.,
(2007) 7 SCC 65 has held that Order XXIII Rule 1(4) of the CPC only precludes
the plaintiff withdrawing the suit from instituting any fresh suit in respect
of the subject matter or such part of the claim raised in the suit being
withdrawn. The Supreme Court held that the said provision does not debar the
said plaintiff to set up the same plea in his defence to a suit filed by the
other party. The quote from the judgment as under:-
“15.
In (Rani) Kulandai Pandichi v. Indran Ramaswami Pandia Thevan [AIR 1928 Mad
416] it has been held as follows: (AIR pp. 418-19)
“Permission
to withdraw a suit decides no matters in controversy and does not confer any
rights on a party and the fact that the person withdrawing is precluded from
bringing a fresh suit on the same cause of action cannot be said to have that
effect. It has been held that an order permitting the withdrawal of a suit or
appeal is not a decree within the meaning of the Civil Procedure Code. We need
only refer to Patloji v. Ganu [ILR (1891) 15 Bom 370], Jogodindro Nath v. Sarut
Sunduri Debi [ILR (1891) 18 Cal 322] and Abdul Hossein v. Kasi Sahu [ILR (1900)
27 Cal 362].”
19.
In view of the above judgments, the position in law is clear that when the
court allows the suit to be withdrawn without liberty to file a fresh suit,
without any adjudication, such order allowing withdrawal cannot constitute a
decree and it cannot debar the petitioners herein from taking the defence in
the second round of litigation as held in the impugned judgment. The above
judgments indicate that if the plaintiff withdraws the suit, the order of the
court allowing such withdrawal does not constitute a decree under Section 2(2)
of the Code. That in any event, it will not preclude the petitioners herein
(the defendants in second round) from raising the plea that the sale deed
executed by Chelliah Nadar on 26-2-1973 in favour of Thangaraj Nadar was not
true and valid. Thus, the civil appeal needs to be allowed.”
It
is further observed that following the above judgment, the Delhi High Court has
also in Smt. Seema Kohli v. Sh. Sunil Dua & Ors., 2024 SCC
OnLine Del 5311 reiterated as under:-
“22.
The said Suit was unconditionally withdrawn by the defendants vide Order dated
30.07.2019 of this Court. The defendants neither prayed for nor were granted
leave to institute a fresh suit in respect of the subject matter of the Suit.
In terms of the Order XXII Rule 3(4) of the CPC, the defendants shall therefore
be precluded from instituting any fresh Suit in respect of the said subject
matter or part of the claim. They, however, would not be precluded from taking
the same plea in defence to the present Suit.”
It
is therefore held in Vandana Sharma (Supra)
as under:
28.
The above principle would be applicable to the facts of the present case. As
noted hereinabove, the present suit had been filed before the defendant
withdrew the Probate Petition. It is the contention of the learned counsel for
the defendant that the Probate Petition was withdrawn as the defendant would
have to prove the Will even as a defence in the present suit. Considered from
the position in law that the defendant was otherwise not required to obtain a
probate of the Will, the Will having been executed in Delhi and relating to a
property in Delhi, and even otherwise the provisions of Order XXIII Rule 1(4)
of the CPC do not bar the plaintiff withdrawing his suit from raising the same
claim as a defence in another suit, in my opinion, the defendant cannot be
barred in the present suit from setting up the Will dated 19.06.2018 as a
defence in the suit.
29.
In Jiten Wadhawan (supra), this Court was confronted with the factual
position where the defendant withdrew his Probate Petition after the plaintiff
had filed his objections in the said petition claiming the alleged Will to be a
forged document. The defendant then tried to set up the said Will in defence to
the suit filed by the plaintiff therein, which was rejected by the learned
Trial Court and the said order was upheld by this Court. The defendant in the
said suit filed an application seeking liberty to lead evidence to prove the
same Will. The Court held that the withdrawal of the Probate Petition, after
filing of the objections stating that the Will is forged, shows that the Will
was not the genuine Will of the Testator and was a forged document.
The
Court also held that withdrawal of the Probate Petition results in a judgment
by the Court. This view of the Court may not be correct.
Section
11 of the CPC may also be referred to as under:-
“11.
Res judicata.—
No
Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.”
The
Supreme Court in Prem Kishore v. Brahm Prakash, 2023 SCC OnLine
SC 356, held that for res judicata under Section 11 of the CPC to apply,
the previous suit should have been decided on merits. The quote from the
judgment may be reproduced as under:-
“26.
Section 11 of the CPC enunciates the rule of res judicata: a court shall not
try any suit or issue in which the matter that is directly in issue has been
directly or indirectly heard and decided in a „former suit‟.
Therefore, for the purpose of adjudicating on the issue of res judicata it is
necessary that the same issue (that is raised in the suit) has been adjudicated
in the former suit. It is necessary that we refer to the exercise taken up by
this Court while adjudicating on res judicata, before referring to res judicata
as a ground for rejection of the plaint under Order 7 Rule 11. Justice R C
Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench
in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551, discussed the plea of
res judicata and the particulars that would be required to prove the plea. The
Court held that it is necessary to refer to the copies of the pleadings, issues
and the judgment of the “former suit‟
while adjudicating on the plea of res judicata:—
“11.
The rule of res judicata does not strike at the root of the jurisdiction of the
court trying the subsequent suit. It is a rule of estoppel by judgment based on
the public policy that there should be a finality to litigation and no one
should be vexed twice for the same cause. xxxx
13.
Not only the plea has to be taken, it has to be substantiated by producing the
copies of the pleadings, issues and judgment in the previous case. May be, in a
given case only copy of judgment in previous suit is filed in proof of plea of
res judicata and the judgment contains exhaustive or in requisite details the
statement of pleadings and the issues which may be taken as enough proof. But
as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780]
the basic method to decide the question of res judicata is first to determine
the case of the parties as put forward in their respective pleadings of their
previous suit and then to find out as to what had been decided by the judgment
which operates as res judicata. It is risky to speculate about the pleadings
merely by a summary of recitals of the allegations made in the pleadings
mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal
[AIR 1964 SC 1810 : (1964) 7 SCR 831] placing on a par the plea of res judicata
and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure,
held that proof of the plaint in the previous suit which is set to create the
bar, ought to be brought on record. The plea is basically founded on the
identity of the cause of action in the two suits and, therefore, it is
necessary for the defence which raises the bar to establish the cause of action
in the previous suit. Such pleas cannot be left to be determined by mere
speculation or inferring by a process of deduction what were the facts stated
in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna
Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal
173] pointed out that the plea of res judicata cannot be determined without
ascertaining what were the matters in issue in the previous suit and what was
heard and decided. Needless to say, these can be found out only by looking into
the pleadings, the issues and the judgment in the previous suit.” (Emphasis
supplied)
In
para no. 27 in Vandana Sharma (Supra) it is held as under:
27.
This Court in the case of V. Rajeshwari (supra) observed that the rule of res
judicata does not strike at the root of the jurisdiction of the Court trying
the subsequent suit. It is a rule of estoppal based on the public policy of
achieving finality to litigation. The plea of res judicata is founded on proof
of certain facts and then applying the law to the facts so found. It is,
therefore, necessary that the foundation for the belief must be laid in the
pleadings and then the issue must be framed and tried. xxxx
38.
The general principle of res judicata under Section 11 of the CPC contain rules
of conclusiveness of judgment, but for res judicata to apply, the matter
directly and substantially in issue in the subsequent suit must be the same
matter which was directly and substantially in issue in the former suit.
Further, the suit should have been decided on merits and the decision should
have attained finality. Where the former suit is dismissed by the trial court
for want of jurisdiction, or for default of the plaintiff's appearance, or on
the ground of non-joinder or mis-joinder of parties or multifariousness, or on
the ground that the suit was badly framed, or on the ground of a technical
mistake, or for failure on the part of the plaintiff to produce probate or
letter of administration or succession certificate when the same is required by
law to entitle the plaintiff to a decree, or for failure to furnish security
for costs, or on the ground of improper valuation, or for failure to pay
additional court fee on a plaint which was undervalued, or for want of cause of
action, or on the ground that it is premature and the dismissal is confirmed in
appeal (if any), the decision, not being on the merits, would not be res
judicata in a subsequent suit.”
The
reliance on behalf of the plaintiff on
the judgment of the Supreme Court in Sarguja Transport Service (supra),
also does not assist the plaintiff. The Supreme Court in that case has held
that though the rule of res judicata does not apply where the first suit
is withdrawn by the plaintiff without seeking permission of the Court to file a
second suit, the principle contained in Order XXIII Rule 1(4) of the CPC is
based on public policy to prevent abuse of the Court’s process and, therefore,
only bars filing of a second suit on the same subject matter. The quote from
the judgment as under:
“7.
The Code as it now stands thus makes a distinction
between 'abandonment' of a suit and 'withdrawal' from a suit with permission to
file a fresh suit. It provides that where the plaintiff abandons a suit or
withdraws from a suit without the permission, referred to in subrule (3) of
Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any
fresh suit in respect of such subject-matter or such part of the claim. The
principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff
once institutes a suit in a Court and thereby avails of a remedy given to him
under law, he cannot be permitted to institute a fresh suit in respect of the
same subject-matter again after abandoning the earlier suit or by withdrawing
it without the permission of the Court to file fresh suit. Invito benificium
non datur. The law confers upon a man no rights or benefits which he does not
desire. Whoever waives, abandons or disclaims a right will loose it. In order
to prevent a litigant from abusing the process of the Court by instituting
suits again and again on the same cause of action without any good reason the
Code insists that he should obtain the permission of the Court to file a fresh
suit after establishing either of the two grounds mentioned in sub-rule (3) of
Rule 1 of Order XXIII. The principle underlying the above rule is rounded on
public policy, but it is not the same as the rule of res judicata contained in
Section 11 of the Code which provides that no court shall try any suit or issue
in which the matter directly or substantially in issue has been directly or
substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title,
in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by
such Court. The rule of res judicata applies to a case where the suit or an
issue has already been heard and finally decided by a Court. In the case of
abandonment or withdrawal of a suit without the permission of the Court to file
a fresh suit, there is no prior adjudication of a suit or an issue is involved,
yet the Code provides, as stated earlier, that a second suit will not lie in
sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is
withdrawn without the permission referred to in sub-rule (3) in order to
prevent the abuse of the process of the Court.”
It
is further held in Vandana Sharma as under:
33.
In the present case, even the principle of public policy would not prevent the
defendant from raising the alleged Will as a defence to the suit, as the suit
had already been filed by the plaintiff, and it is not the case herein that the
defendant withdrew his Probate Petition and only thereafter the present suit
was filed. As noted above, the principle of public policy would come into play
if it was the defendant that had filed a second Probate Petition or may have filed
a suit asserting a right based on the alleged Will dated 19.06.2018 of his
mother.
The
hon’ble Delhi High Court has therefore held in Vandana Sharma
(Supra) that there are issues to be
determined by the Court, which would require evidence to be led by the parties,
and the trial cannot be short-circuited by invoking the provisions of Order XII
Rule 6 of the CPC. The application was therefore dismissed as evidence shall
have to be lead in full dress trial.
The
withdrawal of probate petition by the petitioner of the said petition in view
of the suit filed by the opposite party therefore shall not preclude the
opposite party/defendant in the suit, merely because, the probate petition was
withdrawn after notice received from the court of a suit filed by the plaintiff
i.e the respondent in the probate petition. Neither the principle of res
judicata shall come in aid of the plaintiff, as the lis of the party was not
decided in the probate petition and mere withdrawal cannot short circuit the
necessity of trial in a civil suit where the claim and defence in respect of
the Will, its genuineness or veracity shall have to be decided.
----
Anil K Khaware
Founder
& Senior Associate
Societylawandjustice.com
