Smt. Rajinder Kour vs Sardar Amar Jeet Singh

Sanjay Yadav, J.—Heard on admission.

Petitioner calls in question the order dated 28.3.2014 passed by Civil Judge Class I, Jabalpur vide this petition under Article 227 of the Constitution of India; whereby, in a proceeding u/s 383 Indian Succession Act, 1925 brought in vogue by the petitioner for revocation of order dated 10.11.2003 passed in Succession Case No. 29/2003, the Trial Court while entertaining an application u/s 10, Code of Civil Procedure, 1908 filed by respondent has stayed the proceedings on the ground that, a suit for declaration that the succession certificate issued by order dated 10.11.2003 is null and void, has filed vide civil suit No. 66 A/2005 on 19.5.2006 and pending consideration before Fourth Additional District Judge, Jabalpur.

Challenging the order it is contended that, procedure prescribed u/s 10 Code of Civil Procedure, 1908 is not attracted in respect of the proceedings under the Succession Act and therefore, the trial Court has exceeded its jurisdiction.

Section 10, CPC provides for that "no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." The section thus enacts rule of procedure. It has been held in Pukhraj D. Jain and Others Vs. G. Gopalakrishna, that "4..........It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. ...

Section 371 of Succession Act, 1925 provides for the Court having jurisdiction to grant certificate. It stipulates "The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.

Thus, the proceedings following in the succession is of civil nature.

Section 141 CPC stipulates that "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." An explanation has been added vide SOR (Gazette of India 8.4.1974 Pt. II Section 2 Ext.P. 310) that "Explanation-In this section, the expression "proceedings" includes proceedings under Order 9 but does not include any proceeding under Article 226 of the Constitution.

In Ramji Sao and Others Vs. Jageshwari and Another, it has been held that "12. Section 384(3) of the Act appears to show that the provisions relating to reference to and revision by the High Court as well as to review of judgment as given in the CPC would apply to a proceeding for grant of a succession certificate before the District Judge, and that they would apply because of the provisions of Section 141 of the Civil Procedure Code. The inference, therefore, is clear that other provisions of the CPC relating to the procedure in suits will apply also to a proceeding for grant of succession certificate under the Act because it is a proceeding in a Court of civil jurisdiction.

It has been held in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, that "6....this Court has acted upon the view that the expression "civil proceeding" in s. 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a gurdian etc. but that it applies also to a proceeding which is not an original proceeding. Thus, though we say that it is not an original to consider in this case whether. the proceeding before the civil court is a civil proceeding as contemplated by s. 141 or not there is good authority for saying that it is a civil proceeding...

In Nira Kanta Chutia v. Smt. Bedoi Chutiani and another (AIR 1977 Gauhati 70) it has been held that " 30. The import of these two provisions (Section 268 of 1925 Act and Section 141 CPC) of law is that proceedings before the Court of District Judge in relation to the probate and letters of administration are to be regulated, as far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 and that the contested proceeding is to take as nearly as may be the form of a suit...

In Amitav Ray Vs. Ashok Kumar Ray and Another, it is held "7. There is no dispute about the fact that the case for grant of Letters of Administration is registered as a suit by virtue of Section 141 C.P.C. when it is registered as such, the suit has to proceed according to the procedure laid down in the Code of Civil Procedure...

In view whereof when the impugned order is tested on the anvil of the proposition of law laid down in the decisions noted above, it does not suffer any infirmity as would warrant any interference.

Consequently, petition fails and is dismissed. No costs.