Pushplata Prasad vs Amritanshu Prasad

Sanjay Kumar Dwivedi, J

Heard  Mr.  Amar  Kumar  Sinha,  learned  counsel  for  the  petitioner, Mr. Prashant Pallav, learned counsel for the opposite party no. 1 and Mr. Ayush, learned counsel for the opposite party no. 6.

This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dated 04.01.2025 passed by the learned Additional Judicial Commissioner-XV, Ranchi in Probate Case No. 09 of 2017 contained in Annexure-5, whereby, the petition filed by the petitioner under Order XXVI Rule 11 of the CPC for grant of leave to issue a commission for examination and cross-examination of petitioner/opposite party no.5 at her residence on account of serious illness, has been rejected by the learned Court.

Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner submits that the opposite party no. 1/plaintiff instituted a suit for grant of Probate under Section 272 read with Section 289 of the Indian Succession Act in the Court of the learned Principal Judicial Commissioner, Ranchi being Probate Case No. 09 of 2017 with respect to the alleged Will dated 21.06.2006 which has been executed by the deceased Testator, namely, Durga Prasad in favour of the petitioner bequeathing the properties mentioned in Schedule-A to E of the petition and prayer was made for the grant of aforementioned properties in favour of the petitioner. He submits that after notice, opposite party nos. 1, 2 and 5 jointly filed their show-cause and the matter proceeded further and the evidences have been adduced on behalf of the opposite party no. 1/ plaintiff. He further submits that the plaintiff’s evidence has been closed and, thereafter, the matter was running for the evidence on behalf of the petitioner/opposite party no.5 and the chief was filed in August, 2024 and for cross-examination the prayer was made by filing a petition before the learned Court to constitute a commission for examination and cross-examination of the petitioner herein at her residence, which has been rejected by the learned Court. He also submits that the petitioner is an aged lady and she is suffering from several ailments and in view of that, said petition has been filed by the petitioner, however, the learned Court has rejected the said petition. On these grounds, he submits that the impugned order may kindly be set-aside.

Mr. Prashant Pallav, learned counsel appearing for the opposite party no. 1 / plaintiff opposed the prayer and submits that the petitioner herein has come to the learned Court for swearing the affidavit on 1st August, 2024. He further submits that only to delay the matter, such petition has been filed and in view of that, the learned Court has rightly rejected the same.

The Court has perused the impugned order dated 04.01.2025. It transpires that the learned Court has found that the petitioner herein has appeared before the Notary Public for affidavit to her statement on 01.08.2024 and in view of that, the learned Court found that she is able to move and there is dispute between the family members with regard to the said probate of Will and in view of that, learned Court has been pleased to reject the said petition.

It has been pointed out that 14 dates have passed only for the cross-examination and it appears that the said petition has been filed only to delay the matter. The Court has further looked into the medical certificate and the ailment is said to be the obesity and further no prescription and any investigation report has been annexed with the petition, which further doubts the conduct of the petitioner.

Moreover, the petition has been filed before the learned Court under wrong provision of law under Order XXVI Rule 11 of the C.P.C. which is meant to adjust accounts in a suit where such examination or adjustment is necessary, however, merely filing the petition under the wrong provision of law cannot be a ground for rejecting the petition. At the same time, what has been discussed herein above, it clearly suggests that the petitioner has appeared before the Notary Public for her statement on 01.08.2024 for swearing the affidavit and, thereafter, 14 dates have elapsed.

A reference may be made to the judgment passed by the Hon’ble Supreme Court in the case of Shiv Cotex V. Tirgun Auto Plast P. Ltd and Ors, reported in MANU/SC/0991/2011, wherein, at paragraph no. 16 it has been held as under:

“16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his nonavailability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don’t, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100 CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed.”

In light of the above discussions, the Court finds that there is no illegality in the impugned order and, as such, this petition is dismissed..