civil suit is maintainable in respect of a Will? or it will be hit by Section 213 of ISA

 

civil suit is maintainable in respect of a Will?  or it will be hit by Section 213 of ISA

 

Often, it was felt earlier that a civil suit for declaration and permanent injunction shall not lie in respect of a Will, and the only option shall be to prefer a petition for seeking a probate, or Letter of Administration to a Will, in view of provisions contained in section 213 of Indian Succession act 1925( In short “ISA”). The courts of law has also been rejecting suit civil suits on the touchstone of order VII Rule 11 (d)  of Code of Civil Procedure (In short “CPC”)  as it was perceived that there is a clear embargo cast in view of section 213 of ISA 1925 and hence the suit shall not be maintainable and hence, such plaints were being rejected with impunity taking note of the principles of Order VII Rule 11 0f CPC.   The understanding or so to say the illusion probably stemmed from the fact that the probate petition shall not be a plaint and the only option available to a party to the lis involving a Will is to prefer a petition for probate or Letter of Administration. Is it so? No, in fact, no longer. Though, the ld Single Judge of Delhi High Court has also held earlier that suit for declaration and permanent injunction shall not lie for matters relating to Will and the plaint was therefore rej3ected as per the provisions as contained under Order VII Rule 11 of CPC and it was held that a civil suit for declaration, permanent injunction shall not be maintainable, in a testamentary case. The judgment of ld single judge, however, was set aside by the hon’ble Division bench of Delhi High Court in a intra court appeal and the judgment of the division bench is upheld by the hon’ble Supreme Court of India. However, given the significance of the matter and also the fact that ambivalence had persisted for quite an inordinate length of time, hence, the discussion to trace out the nuances of the issues shall necessitate discussion and that follows in the analysis hereinafter.

Through the Division bench of Delhi High Court, the matter as discussed above, captioned as Kanta Yadav Vs Om Prakash Yadav & Ors had travelled to the Supreme Court through SLP  (Civil) 19096 of 2017 and that was converted into a Civil Appeal bearing No. 5823 of 2019.The ld Single judge had held that the suit for declaration and permanent injunction is not maintainable in view of Section 213 of ISA 1925 and as stated it was set aside by the division bench and order of Division bench was affirmed by the Supreme Court.

                        Brief Facts

(1) One Zorawar Singh was owner of certain immoveable property in New Delhi.  He executed a Will dated June 16, 1985 and codicil dated October 21, 1985 bequeathing a self-acquired property in favour of both the parties.  Zorawar Singh died on January 4, 1986. 

(2) Two suits came to be filed; one by the present respondents bearing CS (OS) No. 3310 of 2012 claiming declaration and permanent injunction in respect of the Will and codicil executed by Zorawar Singh and also Will dated June 18, 2009 executed by Smt. Ram Pyari, wife of Zorawar Singh; and

The other suit filed by the present appellant bearing CS (OS) No. 430 of 2012 claiming natural succession. 

(3) The Division Bench of the Delhi High Court held that the bar under Section 213 of the Act is not applicable and, therefore, set aside the order of rejection of plaint and directed that both the suits be clubbed and common evidence be led together. 

The short question that arose to be probed is as to whether it is necessary to seek probate or letter of administration in respect of a Will in terms of Section 213 of the Act in the National Capital Region of Delhi?

The present National Capital Region Delhi was part of erstwhile State of Punjab prior to November 1, 1966. As per the respondents Section 57 of the ISA is applicable, where the properties and parties are situated in the territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek probate or letter of administration in respect of properties or the persons when they are not located in the States of Bengal, Madras or Bombay.

Certain statutory provisions are relevant to analyse the issue further.

“Section 213- Right as executor or legatee when established-

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made by Muhammadans, and shall only apply-

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962(16 of 1962.) where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits.]

Section 57–Application of certain provisions of Part to a class of Wills made by Hindus, etc. –

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.”

The above provisions have been examined before the Punjab and Haryana High Court and Delhi High Court.  In Ram Chand v. Sardara Singh & Ors. AIR 1962 P&H 382 , the Punjab High Court held as under:

“4. …The clear effect of these provisions appears to be that the provisions of section 213(1) requiring probate do not apply to wills made outside Bengal and the local original jurisdictional limits of the High Courts at Madras and Bombay except where such wills relate to immovable property situated within those territories.

5. There remains to be considered the decision of Shamsher Bahadur, J., in the case mentioned above, which is apparently based on the decision of a Full Bench in Ganshamdoss Narayandossv.Gulab Bi Bai, [ I.L.R. 50 Mad. 927.] .I find, however, on perusing this judgment that what has been held is that a defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will is not probated and no letters of administration with the will annexed have been granted. This is clearly in accordance with the provisions of sections 213 and 57(a) of the Act, and the only point on which the matter was referred to the Full Bench was whether a will could be set up in defence in a suit without probate.

6. As I have said the clear reading of the provisions of the Act leave no doubt whatever that no probate is necessary in order to set up a claim regarding property either movable or immovable on the basis of a will executed in the Punjab and not relating to property situated in the territories mentioned in section 57(a). I accordingly accept the revision petition and set aside the order of the lower Court requiring the petitioner to obtain probate. The matter may now be disposed of by the lower Court, where the parties have been directed to appear on the 4th of December, 1961. The parties will bear their own costs in this Court.”

The aforesaid view was affirmed by the Division Bench of Punjab and Haryana High Court in M/s. Behari Lal Ram Charan v. Karam Chand Sahni & Ors. 1968 AIR (Punjab) 108:

“3.  From a bare perusal of these two sections, it is apparent that the objection of defendant No. 1 on the preliminary issue raised by him in the trial Court was without any substance. Clause (a) of section 57 read with sub-section (2) of section 213, it would appear, applies to those cases where the property and parties are situate in the territories of Bengal, Madras and Bombay, while clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories. Clause (c) of section 57, however, is not relevant for the present purposes. Therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina, are outside the territories mentioned above, the rigour of section 213, sub-section (1), is not attracted. Reference was made by the learned referring Judge toa decision of the Supreme Court in Mrs. Hem Noliniv.Mrs. Isolve Sarojbashini Bose, AIR 1962 Supreme Court 1471, but the parties in that case were Christians (to whom it is agreed section 57 does not apply) and their Lordships only considered the implications of sub-section (1) of section 213 of the Act and not of sub-section (2) of that section read with section 57 clauses (a) and (b). The learned Single Judge probably felt the difficulty because of the view taken by Shamsher Bahadur, J. In Kesar Singh and othersv.Tej Kaur, 1961 P.L.R. 473, but that judgment was considered by Falshaw, J. (as he then was) in Ram Chandv. Sardara Singh, 1962 P.L.R. 265, who differed from the view taken by Shamsher Bahadur, J., in the above-mentioned case, holding that no probate was necessary in order to set up a claim regarding property either movable or immovable on the basis of a will executed in the Punjab and a succession certificate could be granted on the ground of a will without obtaining probate. While referring to the decision of Shamsher Bahadur, J., in Kesar Singh's case, Falshaw, J., observed that the view taken by Shamsher Bahadur, J., was apparently based on the decision of a Full Bench in Ganshom dass v.Gulab Bi Rai, ILR 50 Madras 927 where it was held that a defendant resisting a claim made by the plaintiff as heir-at-law could not rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will was not probated and no letters of administration with the will annexed had been granted. TheMadras case was clearly in accordance with section 213 read with section 57 of the Act. We agree with the view taken by Falshaw, J., in Ram Chand's case. A similar view was expressed by Jai Lal, J., in Sohan Singh v. Bhag Singh, AIR1934 Lahore 599, and by me in C.R. 340-D/1965 (Radhe Lal v. Ladli Parshad) decided on 24th August, 1965. Even a cursory glance at sections 213 and 57 of the Act leaves no room for doubt that the view taken by Shamsher Bahadur, J., in the case mentioned above was erroneous. It appears that the case of Sohan Singh v. Bhag Singh (supra), referred to above, was not brought to his notice.”

A single bench of Delhi High Court in Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors. AIR 2002 Delhi 6, a Single Bench of Delhi High Court held as under:

“11.On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the learned counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.”

Yet again a Division Bench of Delhi High Court in Shri Rajan Suri & Anr. v. The State & Anr. AIR 2006 Delhi 48  referred to the Division Bench judgment in Behari Lal’s case and certain other Single Bench judgments of Delhi High Court to conclude as under:

“33.The result of the aforesaid is that complete line of judgment referred by the learned counsel for the petitioner in support of the submission that probate is mandatory would have no application to the facts of the present case and thus findings arrived at in the collateral proceedings in the suit to which the petitioners were parties would bind the petitioners.”

Reliance was further placed on the Supreme Court judgment in Clarence Pais & Ors. v. Unionof India  (2001) 4 SCC 325,   wherein, validity of Section 213 of the Act was challenged as unconstitutional and discriminatory against the Christians. The Supreme Court held as under:

“6.…A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct.”

It is also held in Clarence Pais (Supra) that:

5. The scope of Section 213(1) of the Indian Succession Act, 1925 is that it prohibits recognition of rights as an executor or a legatee under a Will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. The bar that is imposed by this Section is only in respect of the establishment of the right as an executor or a legatee and not in respect of the establishment of the right in any other capacity. The Section does not prohibit the Will being looked into for purposes other than those mentioned in the Section. The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other Tribunal. The Section is a bar to everyone claiming under a Will, whether as plaintiff or defendant, if no probate or Letters of Administration is granted. The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or a legatee in a court is made inapplicable in case of a Will made by Muhammadans and in the case of Wills coming under Section 57(c) of the Act”.

 

The Supreme Court in Kanta Yadav (Supra) has held as under:  

“12.    The statutory provisions are clear that the Act is applicable to Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay-{clause (a)of Section 57 of the Act}.  Secondly, it is applicable to all Wills and codicils made outside those territories and limits so far as relates to immoveable property within the territories aforementioned-Clause (b) of Section 57. The clause (c) of Section 57 of the Act relates to the Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by clauses (a) and (b).However, sub-section (2) of Section 213 of the Act applies only to Wills made by Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) or (b) of Section 57.  Thus, clause (c) is not applicable in view of Section 213(2) of the Act”.

13) In view thereof, the Wills and codicils in respect of the persons who are subject to the Lieutenant-Governor of Bengal or who are within the local limits of ordinary original civil jurisdiction of High Court of Madras or Bombay and in respect of the immoveable properties situated in the above three areas.  Such is the view taken in the number of judgments referred to above in the States of Punjab and Haryana as well as in Delhi as also by this Court in Clarence Pais (Supra).

The Supreme Court, while analysing the various judicial precedents as narrated above have conclusively set out that the trap of section 213 of the ISA 1925 shall not preclude filing of a civil suit for declaration and permanent injunction in respect of Will, after having probed threadbare the provisions as contained in section 213 and section 57 of ISA 1925, particularly , in respect of areas where probate is not compulsory. This follows thus that there is no bar to preferring a suit for declaration and permanent injunction in respect of a Will and the rejection of plaint held to be erroneous in view of prescriptions as laid down in Section 213 and section 57 of Indian Succession Act 1925.

                                        -----

                                Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

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PROBATE PETITION, ITS WITHDRAWAL AND DEFENCE IN CIVIL SUIT: PERMISSIBILITY

 

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 19^th 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 25^th 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 24^th  February, 1994, Late Sh. Gyan Chand Mallick, being her legal heir, succeeded to her 1/3^rd share in the said plot. As Sh. Gyan Chand Mallick died intestate on 25th July, 1998, his 1/3^rd  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 05^th 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 27^th 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 19^th 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 19^th June, 2018 by way of a Registered Will dated 27^th 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 22^nd  November, 2018, revoking all previous Wills, including the Will dated 19^th 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 27^th July, 2018 and 22^nd 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 19^th 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 19^th 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 7^th 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 16^th 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 19^th 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 19^th June, 2018 is deemed to have not been proved, the plaintiff, whether by virtue of Will dated 22^nd  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 19^th 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

               

Whether Trial Court has jurisdiction to cancel the Look Out Circular ?

Look Out circular- PARAMETER OF withdrawal & QUASHING  discussed

Whether Trial Court has jurisdiction to cancel the LOC?

 

The Look Out Circular (LOC) is an instrument, more particularly, during the process of investigation, after registration of F.I.R , whereby police issues such circular against the accused, who , according to them may be a flight risk, being required in the investigation of case or cases owing to palpable role in the offence. Generally, the measures are extra-ordinary and are not adopted as a matter of course, but, if such an accused may be wanted in serious offence or offences the course is adopted However, there are instances when the LOC itself could be coloured exercise of power at the behest of a resourceful complainant. The deliberation on this aspect is therefore a must. Hence, this discussion.

In order to analyse the gravamen of judgments passed by the Courts of law shall be of immense significance. It is apt in the context, thus, to refer to a recent judgment passed by the hon’ble Delhi High Court in a matter captioned as Vineet Gupta & Anr Vs Union of India & Ors WP ( C) 7850/2026 and the date of judgment is 10.02.2026.

FACTS of the case

(i)     Petition for quashing of LOC was filed by the petitioners no.1 and 2 and suspension of LOC for their impending visits to United States of America and United Kingdom and as regards petitioner no.2, the contemplation was to visit Indonesia, Thailand,  Vietnam & Cambodia.

(ii) The very reason of issuance of LOC being their alleged association as a promoter/director of a limited company that availed credit facilities from a consortium of banks, including Union of India. The account of the company was declared as “fraud” by the respondents on 03.05.2016 and 18.05.2018, pursuant thereto complaints were filed with the CBI and FIR No. RCBD/2021/E/0010 was registered u/s 120-B, 406, 420, 467, 468 and 471 of the IPC and u/s 13(2) read with section 13(1)(d) of the {Prevention of Corruption Act 1988( In short “PCA”).Thereafter, Enforce3ment Directorate (ED) had also registered ECIR bearing No. CDZO-I/01/2022 dated 06.01.2022.

(iii) The reasons given for permission to travel abroad was to meet his daughters and spend time with family and as regards the petitioner no.2 the reasons ascribed was to attend the wedding of his childhood friend’s daughter and to spend time with his family and close friends.

(iv)   earlier, the Delhi High Court had permitted the petitioners to visit abroad and the terms of the orders were duly complied with.

(v)     It is also apparent that the petitioners were granted permission to travel abroad by the Special Courts. The LOC issued by CBI was stated to be closed in the meanwhile and  hence, not in force, but the ED opposed the application on the premise that the fraud was of high magnitude.

In the above backdrop, the Delhi High Court opted to deal with the petition itself on merits.

 

It is acknowledged by the court at the very outset under paragraph 10 as  under:

10. “the freedom of movement , both domestic and foreign constituted a core and inalienable facets of personal liberty and operates as an indispensable precondition for the holistic development of human personality and livelihood.
In foreign jurisprudence, the freedom to travel has been recognised as a vital incident of individual liberty, shielded by the guarantee of due process of law embedded within the nation’s constitutional heritage. Freedom of movement across frontiers, as part of the nation’s constitutional heritage, emphasises its intimate connection with personal choice and human dignity”.

The aforesaid is in e4ssence, preamble to freedom of movement. The Article 21 of the Constitution of India guarantees right to life and personal liberty. The freedom emanates from the rights, in essence secures constitutional protection and no fetter could be attached thereto, unless, restrictions are necessitated in apt cases, but only by a procedure 3establsihed by law that is just, fair and reasonable.

Earlier, the Delhi High Court has noted the evolution and guidelines governing the LOC in Anant Raj Kanoria vs Union of India & Anr in WP (C) 3313/2023.

The Delhi High Court has earlier deliberated in (i) Vikram Sharma Vs Union of India 2010 SCC OnLine Del 2475 and (ii) in Sumer Singh Salkan Vs Asst Director 2010 SCC OnLine Del 2699 and elucidated the legal framework relating to issuance of LOC. In case an accused is deliberately evading arrest or not appearing in trial court despite issuance of non-bailable warrants or such coercive measures and the prospect of the accused leaving the country in such circumstances may be imminent, the LOC may be necessary. The questions raised before the High Court were as under:

A. What are the categories of the cases in which the investigating agency can seek recourse of LOC and under what circumstances?

B. What procedure is required to be followed by the investigating agency opening a Look-out-circular?

C. What is the remedy available to the person against whom such Look-out-circular has been opened?

D. What is the role of the concerned Court when such a case is brought it and under what circumstances, the sub-ordinate court can intervene?

answers

A. Recourse to LOC can be taken by Investigating agency in cognisable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in trial court and despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.

B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home affairs, giving details and reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.

C. The person against whom LOC Is issued must join investigation by appearing before I.O or should surrender in the Court concerned or should satisfy the Court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.

D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts' jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

What therefore emerges is that even the Sessions Court/trial Court can affirm or cancel the LOC in a manner the sub-ordinate courts are empowered to cancel NBW. Generally, though, the writ jurisdiction is invoked by the petitioners seeking cancelling/quashing of LOC, though, for interim order or suspension, a petitioner/accused approaches district court/trial court for suspension of LOC.

In the above backdrop, the Ministry of Home Affairs had issued a comprehensive Office Memorandum dated 27.10.2010, reiterating that the issuance of LOCs to cases involving cognizable offences under the IPC or other penal statutes. The subsequent amendments, including the Office Memorandum dated 05.12.2017, further limited the scope of LOCs in exceptional circumstances, where the departure of a person was considered prejudicial to the sovereignty, security, integrity of India, bilateral relations, strategic or economic interests, or larger public interest, with further modifications effected by the memorandums dated 19.09.2018 and 12.10.2018.

Karti P. Chidambaram case

In the context of the aforenoted office memoranda, in Karti P. Chidambaram v. Bureau of Immigration 2018 SCC OnLine Mad 2229,  the Madras High Court held that a LOC is a coercive executive measure which directly impinges upon personal liberty and, therefore, cannot be issued in a mechanical or routine manner. It was observed that under the governing guidelines, an LOC can be resorted to only when there exists tangible material indicating deliberate evasion of arrest or a real likelihood of the individual fleeing the country.

CONSOLIDATION of directions for issuance of LOC

With a view to consolidate the directions for issuance of LOCs, the Ministry of Home Affairs issued a comprehensive Office Memorandum dated 22.02.2021, which presently governs the law with respect to the issuance of LOCs. The relevant extract of said Office Memorandum is as under :-

“6. The existing guidelines with regard to issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners have been reviewed by this Ministry. After due deliberations in consultation with various stakeholders and in suppression of all the existing guidelines issued vide this Ministry's letters/O.M, it has been decided with the approval of the competent authority that the following consolidated guidelines shall be followed henceforth by all concerned for the purpose of issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners:- xxx xxx xxx

(H) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed proforma regarding „reason for opening LOC‟ must invariably be provided without which the subject of an LOC will not be arrested/detained.

(I) In cases where there is no cognizable offence under IPC or other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases xxx xxx

(L) In exceptional cases, LOCs can be issued even in such cases, as may not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clause (B) above, if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interests of India or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point in time.

 

The aforesaid Office Memorandum dated 22.02.2021 along with earlier amendments issued by the Ministry of Home Affairs governing the issuance of LOCs, and their  validity was tested by the Bombay High Court along with earlier amendments issued by the Ministry of Home Affairs governing the issuance of LOCs, in a batch of petitions, the lead matter being Viraj Chetan Shah v. Union of India and Ors. 2024 SCC ONLINEBOM 1195.  The principal challenge was to the constitutional validity of amendments which enabled the Chairmen, Managing Directors, and Chief Executive Officers of public sector banks to seek issuance of LOCs against defaulting borrowers, thereby restraining their right to travel abroad.

It was contended therein that such executive instructions permitted a serious curtailment of personal liberty without any statutory backing or prescribed procedure, in violation of Articles 14 and 21 of the Constitution of India. It was contended that the right to travel abroad being an integral facet of the right to life and personal liberty, and hence, it cannot be curtailed or restricted by executive fiat, particularly in matters arising out of civil or commercial defaults.

After consideration of the issues raised, the Bombay High Court had reiterated that the right to travel abroad is an integral component of the right to life and personal liberty under Article 21 of the Constitution, and any restriction upon it must be founded on law and must follow a procedure that is fair, just, and reasonable. It was categorically held that fundamental rights cannot be curtailed through executive instructions alone, in the absence of a governing statute or a controlling statutory framework and that the Office Memoranda, viewed in their entirety, could not be characterised as per se arbitrary or unconstitutional, so as to warrant their wholesale invalidation. Nonetheless, the Court found a grave constitutional infirmity in the inclusion of Chairmen, Managing Directors, and Chief Executive Officers of all public sector banks under Clause 6(B)(xv) of the Office Memorandum dated 22.02.2021. Such inclusion was held to be bad in law, being arbitrary and unreasonable, founded on an improper and invalid classification, and resulting in the conferment of unguided, and excessive power upon bank officials to seek restrictions on personal liberty without any statutory guidance or procedural safeguards.

It may be relevant to mention, however, that the hon’ble Supreme Court was approached in a Special Leave Petition filed, assailing the decision in Viraj Chetan Shah (Supra). However, the decision of the Bombay High Court has not been stayed.

The Delhi High Court has considered the judgment rendered in Viraj Chetan Shah (Supra) in Sahil Chugh v. Union of India W.P.(C) 6623/2024, wherein, it was held that LOC issued at the behest of a public sector bank against borrowers/directors merely on account of loan default or declaration as wilful defaulters, in the absence of any criminal proceedings, are unsustainable in law. It was emphasized that the expression “detrimental to the economic interests of India” under the MHA guidelines is meant for exceptional cases involving grave, systemic or national economic impact, and not routine commercial defaults. Since in the facts of the case therein no FIR, charge-sheet, or cognizable offence was pending against the petitioner, and the disputes were purely civil and pending before the DRT, the Court quashed the LOC as arbitrary and disproportionate. The relevant extract of the aforesaid decision is extracted as under:-

21. It is well settled that merely because the Office Memorandum permits the issuance of a lookout circular in exceptional circumstances, even when an individual is not involved in any offence under the IPC or any other penal law, the said power should be used in exceptional circumstances and not as a matter of routine.

22. This Court in Apurve Goel v. Bureau of Immigration, W.P.(C) 5674/2023, has held as under:—

“22. The Look Out Circulars cannot be opened merely on the request of the banks. There has to be some application of mind by the authority concerned opening the Look Out Circular since the opening of Look Out Circular results in restraining a person's right to travel abroad. The authority opening the Look Out Circular must satisfy itself that the departure of a person against whom Look Out Circular has been opened would be detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relationship with any country or to the economic interests of India or departure of such a person ought not be permitted in the larger public interest at any given point in time.”

23. It is well settled that mere inability to pay money without there being a criminal case cannot be a reason to take away the Fundamental Right guaranteed under Article 21 of the Constitution of India. Right to travel abroad has been held to be a Fundamental Right under Article 21 of the Constitution of India which cannot be taken away in an arbitrary and illegal manner.

24. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Apex Court has held as under: “5. …Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law….”

25. A Division Bench of the High Court of Bombay in a batch of writ petitions vide Judgment dated 23.04.2024 in Viraj Chetan Shah v. Union of India, W.P.(C)719/2020 etc. has quashed Clause 8(b)(xv) of the Office Memorandum dated 27.10.2010 bearing O.M. 23016/31/2010-Imm. equivalent to Clause 6(B)(xv) of the O.M. dated 22.02.2021 bearing O.M. 25016/10/2017-Imm.(Pt.) whereby the Chairman/ Managing Director/ Chief Executives of all Public Sector Banks could request for opening of an LOC. The effect of the said judgment is that the Chairman/Managing Director/Chief Executives of the Public Sector Banks cannot make a request for issuance of LOC.

26. The issuance of lookout circular cannot be resorted to in every case of bank loan defaults or credit facilities availed for business and the Fundamental Right of a citizen of the country to travel abroad cannot be curtailed only because of failure to pay a bank loan more so when the person against whom the lookout circular is opened has not been even arrayed as an accused in any offence for misappropriation or siphoning off the loan amounts.”

The aforesaid judgment of ld single judge of Delhi High Court was challenged by one of the respondents therein, namely, Bank of Baroda before the division bench in Bank of Baroda v. Sahil Chugh 2025 SCC OnLine Del 9282 The Division Bench, while dismissing the appeal, has held as under :-

“16….Learned counsel for the appellant bank was unable to provide any counter argument or judgment to the ratio laid down by the Division Bench of the High Court of Bombay vide its judgment dated 23.04.2024 in W.P.(C) 719/2020 titled Viraj Chetan Shah v. Union of India, whereby Clause 8 (b) (xv) of the OM dated 27.10.2010 which was equivalent to Clause 6(B)(xv) of the OM dated 22.02.2021, empowering the Chairman/Managing Director/Chief Executive of all Public Sector banks who could make request for opening an LOC, was quashed. The very right, authority and jurisdiction of the Principal Officers of the Public Sector Banks to make a request for issuance of LOC having been divested, the question of relying on the OM issued by the Ministry of Finance etc., would be rendered meaningless. Thus, the contention predicated on the said OM is unpersuasive”.

 Yet again, Delhi High Court Rajesh Kumar Mehta v. Union of India 2024 SCC OnLine Del 4153 has held as under:

“18. In terms of the said OM, an LOC can be issued at the request of the Chairman/Managing Directors/Chief Executive of all Public Sector Banks. A request is given by a person, who is authorized under the said OM, to the Bureau of Immigration and then the Bureau of Immigration at the request of the said Officer opens the Lookout Circular.

19. The Office Memorandum indicates that the legal liability of the action taken by the immigration authorities in pursuance of the Lookout Circular rests with the Originating Agency, in this case, the Bank of Baroda.

20. Clause L of the Office Memorandum of 2021, as quoted above, states that in exceptional cases, an LOC can be issued at the instance of the Bank if the authorities are of the view that letting the person to depart from the country will be detrimental to the economic interests of India.

21. A perusal of the abovementioned Clause L of the Office Memorandum shows that in exceptional circumstances Lookout Circulars can be issued even in such cases which are not covered by the said guidelines which can be issued even when there is no criminal case against the person and person against whom investigation is pending and if it appears to the authorities based on the inputs that the departure of such person is detrimental to the sovereignty or security or integrity of India or bilateral relations or the strategic and/or economic interests of India. the term “detrimental to the economic interests of India‟ has been well defined in several judgments. ***

25. Lookout Circular has been issued against the Petitioner only because of the inability of the company to repay its debts for which the Petitioner stood guarantee. There are no criminal proceedings against the Petitioner and there is no allegation that the Petitioner was instrumental in defalcation or siphoning off the money. The Bank has already initiated steps against the Petitioner and the company by taking steps under the RDDB Act, SARFAESI Act and under the IBC. This Court is of the opinion that after resorting to all the remedies available in law, the Bank cannot open a Lookout Circular as an arm-twisting tactic to recover debt from a person who is otherwise unable to pay more so when there are no allegations that he was engaged in any fraud or in any siphoning off or defalcation of the amounts given as loan.

26. Lookout Circular is a major impediment for a person who wants to travel abroad. There is plethora of judgments which states that no person can be deprived of his right to go abroad other than for very compelling reasons. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Apex Court has held as under:—

“5. …Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law….”

27. In view of the above, the Lookout Circular (LOC) issued against the Petitioner is hereby quashed.

 

In Shalini Khanna v. Union of India, 2024 SCC OnLine Del 837 also, this Court held as under: -

“20. Though Paragraph (L) of the aforesaid Office Memorandum permits the Banks to issue a request for opening a lookout circular, in exceptional cases, even if they are not covered by the guidelines, even in such of those cases, the same can be issued only if departure of such person is detrimental to the sovereignty or security of the country, or departure of the person is threat to the bilateral relations to any country, or to the strategic or economic interest of the country, or if such person is allowed to leave, he may potentially indulge in acts of terrorism or offences against State or that such departure ought not be permitted in larger public interest at any given point of time.

21. It is well settled that merely because the Office Memorandum permits the issuance of a lookout circular in exceptional circumstances, even when an individual is not involved in any offence under the IPC or any other penal law, the said power should be used in exceptional circumstances and not as a matter of routine.

22. The term “detrimental to the economic interests‟ must be of such a magnitude that it can significantly affect the economic interest of the country. In the present case, the total loan amount disbursed is about Rs. 7 crores and even if one adds the interest to it, it cannot be said that the amount is so large that it will affect the economic interests of the country.

23. The issuance of lookout circular cannot be resorted to in every case of bank loan defaults or credit facilities availed for business and the Fundamental Right of a citizen of the country to travel abroad cannot be curtailed only because of failure to pay a bank loan more so when the person against whom the lookout circular is opened has not been even arrayed as an accused in any offence for misappropriation or siphoning off the loan amounts.”

In Anastasiia Pivtsaeva & Anr. v. Union of India & Ors. 2024 SCC OnLine Del 5170 the Delhi High Court has held that mere association or a familial relationship with an accused, in absence of any concrete material showing direct involvement or complicity in the alleged offence, cannot justify adverse action such as denial of security clearance or the continuation of coercive measures.

The Delhi High Court, yet again, a  comprehensive discussion about LOC validity also followed in Puja Chadha v. Directorate of Enforcement 2025:DHC:8787 it is held as under:

13 The Court, while relying on the decisions in the cases of Prashant Bothra v. Bureau of Immigration 2023 SCC OnLine Cal 2643, Dhruv Tewari v. Directorate of Enforcement 2022 SCC OnLine Del 1893, Sumer Singh Salkan , Brij Bhushan Kathuria v. Union of India 2021 SCC OnLine Del 2587 and Anastasiia Pivtsaeva, held that the power to issue an LOC is an exceptional and coercive measure which has a direct bearing on an individual‟s fundamental right to travel, and therefore must be exercised strictly in accordance with law. Emphasising the aforesaid, this Court in the case of Sandeep Dhanuka v. Directorate of Revenue Intelligence 2025 SCC OnLine Del 8280.,

In Prashant Bothra v. Bureau of Immigration., 2023 SCC OnLine Cal 2643, it was held as under:

“39. In the present case, as rightly pointed by learned counsel for the petitioners, the stage of investigation within the contemplation of Section 212(1) - (4) of the 2013 Act is not yet over. Thus, as of today, whatever may the allegations against the petitioners or the Company of which they were Directors and guarantors, the same cannot tantamount to a cognizable offence against the petitioners.

It is now settled that opening of an LOC has a very serious effect on a person's fundamental right to travel abroad which is on the face of Article 21 of the Constitution of India and the said right to travel cannot be curtailed without following due process. It is also settled law that recourse to LOC can be taken by the Investigating Agencies primarily when there is a cognizable offence under IPC or in any other penal laws or where the accused is deliberately evading the arrest and not appearing before Court despite summons being served on him or issuance of non-bailable warrants or when other coercive measures have been taken by the Court to ensure his appearance in the Court and that there is likelihood of the accused to leave the country to evade such trial or arrest.

The LOCs are also being issued at the instance of Investigating Agencies where apprehension is raised by the Investigating Agencies that the person who is alleged of committing an offence might escape the clutches of law by leaving the country. However, the law is also getting crystallized that merely because there are some revenue implications, the LOC cannot be opened against a person (Ref:  Priya Parameswaran Pillai v. Union of India, [2015 VII AD (Delhi) 10] has held that merely because there were some revenue implications due to notices issued by the Income Tax Authorities, the violations of tax laws are not demonstrative of the fact that the Petitioner therein had acted inimical to the economic interests of the country.

The Delhi High Court, after having analysed law as aforementioned,  governing LOC and parameter of its issuance has held in Vineet Gupta (Supra) that mechanical continuation of a LOC, in absence of any necessity for the petitioner’s participation in the investigation, renders such restrain arbitrary, more so, if the accused had neither evaded the process of law nor have exhibited intent of obstructing the investigation.  The guiding principles are thus, again enumerated in Vineet Gupta (Supra) and the same are illustrated as under:

 

(i) LOC constitutes a coercive executive measure having a substantial impact on the fundamental right to travel, which forms an integral facet of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Consequently, the power to issue an LOC must be exercised sparingly, strictly in accordance with law, and only upon satisfaction of the conditions prescribed under the governing Office Memoranda;

(ii) An LOC may be issued only in cases involving a cognizable offence under the relevant statutes, where specific, tangible material demonstrates that the person concerned is deliberately evading arrest or judicial process, or that there exists a real and proximate likelihood of absconding;

(iii) Moreover, the exceptional power under Clause 6 (L) of the Office Memorandum dated 22.02.2021 is to be narrowly construed and may be exercised only in rare and compelling cases, where, the proposed departure of subject poses a clear and grave threat to the sovereignty, security, or integrity of India, or to its strategic or economic interests in a national or systemic sense, or the larger public interest;

(iv) An LOC issued at the instance of Chairman, Managing Director, or Chief Executive Officers of Public Sector Banks, would not withstand the scrutiny of law and judicial review. Thus, as of now, the LOC issued to Public Sector Banks cannot be sustained and are liable to be quashed;

(v) Courts, in exercise of writ jurisdiction, are duty-bound to subject the issuance and continuation of LOCs to strict scrutiny, balancing the legitimate interests of the State with the individual‟s fundamental rights, and to quash such circulars where the restraint imposed is found to be arbitrary, disproportionate, lacking in statutory backing, or violative of the principles of fairness, reasonableness, and due process. Ultimately, the burden lies squarely upon the “originating agencies” to justify, the necessity, proportionality, and legality of the restraint, failing which such action cannot be sustained. Pertinent to observe that the continuance of an LOC is not indefinite and must be periodically reviewed. Where it is evident from the record that the subject has cooperated with the investigation, has not evaded the process of law, and where no further interrogation or presence is demonstrably required, the continued operation of an LOC would amount to an unreasonable and unjustified restriction on personal liberty;

(vi) However, it is also to be emphasised herein that the Writ Court is not the exclusive grievance redressal mechanism available to a person against whom a LOC has been issued. As held in Sumer Singh Salkan, a person against whom a LOC is issued is, in the first instance, required to join the investigation or surrender before the jurisdictional Court, or otherwise satisfy the Court that the LOC is unwarranted. The individual may also approach the authority which ordered issuance of the LOC and seek its withdrawal on the grounds of illegality or non-application of mind. An LOC may be withdrawn by the originating authority and may also be rescinded or modified by the trial Court or the Court having jurisdiction over the concerned police station, upon an appropriate application.

In Vineet Gupta (Supra), thus, the Delhi High Court has categorically held that there are no justification to continue the LOC in the instant case and it was quashed, albeit, the petitioner was directed to submit an undertaking before the concerned Special Judge, PMLA Court and Special Judge, CBI Court affirming that they shall continue to co-operate in the investigation and shall appear before the trial court as and when required and as long as trial is pending prior permission shall have to be obtained from trial court for visiting abroad.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com