Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 544-18, in Suit no. 8447 of 19
MHCC010020922018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.544 OF 2018
IN
SUIT NO.8447 of 1998
IN
(HIGH COURT SUIT NO. 4677 OF 1998)
Mangala Maruti Dalvi and Ors. ... Plaintiffs
V/s
Snehalata Ganpat Dalvi and Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 13th DAY OF JUNE, 2023
-: Appearances: -
The learned Adv. Nilesh Makhwana for plaintiffs.
The learned Adv. Clarissa Miranda for defendants No.2, 4, 6 and 7 for
defendants.
ORAL ORDER
Defendants have taken out present notice of motion for
stay of the present suit under section 10 of the Code of Civil Procedure,
1908 (in short, ‘
CPC’), in view of pendency of testamentary petition
no.333 of 1993 filed in original side of the Hon’ble High Court of
Bombay which later on converted into testamentary suit no.93/1999.
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2. In short, it is contention of defendants that plaintiffs have
filed suit for declaration and partition against defendants. The deceased
Ramchandra Dalvi, father of defendants and grandfather of plaintiff’s
no.2 and 3, has executed a Will which is under challenge in the suit as
well as in testamentary suit no.93/1999. Therefore, main issue of
validity of Will is being challenged in both these proceedings, thus, both
proceedings have involved common question and common issue
regarding Will executed by Ramchandra Dalvi. Hence, it is necessary
that the present suit required to be stayed so as to avoid conflicting
orders. Hence, the notice of motion.
3. Plaintiffs strongly opposed the notice of motion by filing
reply on affidavit. Plaintiffs admitted that they have filed suit for
claiming reliefs inter-alia for declaration that the last Will and testament
of late Ramchandra Dalvi dated 29th March 1991 is not binding on them
and for claiming their share in the ancestral property. It is contended
that except issues no. 3 and 4 other issues are different in both the
proceedings. Therefore, the notice of motion taken out by the defendant
being devoid of substance and merit is liable to be rejected.
4. Heard the learned advocate for the plaintiffs, and the learned
advocate for the defendants at length. The learned advocate for the plaintiffs
in support of his argument relied upon the authority reported in the case of
Praveer Chandra Vs. Aparajita & Ors decided by the Hon’ble High Court of
Delhi on 31/10/2019 in CM (M) 452/2019 & CM APPL No. 12663/2019.
Perused the record.
5. Following points arise for my determination to which I have
recorded my findings with reasons as follows: -
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Sr. No. Points Determination
1. Whether the defendants are entitled
for the reliefs claimed in the notice of
motion?
In the affirmative
2. What order? As per final order.
REASONS
As to Points no.1: -
6. At the outset, I want to submit that, the plaintiffs admitted
that, they have challenged Will executed by deceased Ramchandra.
Herein, it is to be noted that the plaintiff no.1 is the mother of minor
defendants no.1 and 2, who has filed the suit for partition being natural
guardian of minors against her in-laws. Plaintiffs have also admitted
that following issues are common in the present suit and the
testamentary suit pending before the Hon’ble High Court i.e.,-
1) Whether defendants prove that the late Ramchandra Dalvi has
executed the Will and bequeath his property in favour of the
defendants?
2) Whether plaintiffs prove that Will is forged and fabricated?
7. I have gone through the authority relied on by the learned
advocate for the plaintiff in the case of Praveer Chandra (supra). In the
cited authority, plaintiffs have filed suit for partition and for declaration
regarding the Will dated 17th May, 2009 before the District Court, at
New Delhi. Defendants have filed the probate petition no. 46/2011
under the Indian Succession Act before the Court of Subordinate Judge-
1, Motihari Bihar. Defendant has filed an application under section 10
of
CPC seeking stay of the partition suit during the pendency of the
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probate petition. The Hon’ble Delhi High Court while confirming the
order of the trial Court, wherein the petition came to be rejected, at
para no. 13 observed that, “
the probate petition, strictly speaking,
cannot be considered to be a ‘previous suit’ under section 10 CPC.
Ideally, a probate petition and the partition suit between the same
parties ought to be heard and adjudicated together, in order to avoid
multiplicity of proceedings and conflicting findings/ decision. However,
since the suit is pending in the District Courts, Delhi and the probate
petition is pending before the Civil Judge, Motihari, Bihar, this Court is
of the opinion that the probate petition having been filed 8 years ago
i.e. in 2011 and the partition suit being also pending for more than 4 to
5 years, the trial in the partition suit shall continue.”
At para no.15 the Hon’ble Delhi High Court further held that,
“ If
the trial Court decides that the partition suit is liable to be dismissed,
then no further orders would be required to be passed. However, if the
suit is decreed, it is directed that the said decree would come into effect
after the decision of the probate petition, which is pending in Motihari,
Bihar. Post the decision in the probate petition, parties are left to avail
of their respective remedies in respect of decisions in both proceedings”
8. For ready reference, I reproduce Section 10 of the Civil Procedure
Code which read as under: -
“10. Stay of suit-
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
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beyond the limits of [India] established or continued by [ the Central
Government [* * *] and having like jurisdiction, or before [ the
Supreme Court]”.
9. As stated supra, it is not disputed that arising out of same
Will dated 29/03/1991 the present suit and a testamentary suit no.
93/1999 is pending before the Hon’ble High Court of Judicature at
Bombay. In the said proceeding before the Hon’ble High Court issues
came to be framed on 12th March, 2011 wherein the issue no. 3 and 4 in
the present suit is common in the testamentary suit no. 93/1999. It is
also submitted that evidence is begin in the proceedings before the
Hon’ble High Court. It is to be seen that both issues in the present suit
and the testamentary suit before the Hon’ble High Court are directly
and substantially between the same parties litigating under the same
title. It is further to be seen that, defendants have filed testamentary
petition in the year 1993, which came to be converted as testamentary
suit no.93/1999. Thus, it is filed earlier in time than the present suit. In
the cited authority, the Hon’ble Delhi High Court also of the view that, if
the suit is decreed, then the said decree would come into effect after the
decision of the probate petition, which is pending in Motihari, Bihar.
Post the decision in the probate petition, parties are left to avail of their
respective remedies in respect of decisions in both proceedings. Thus,
the partition suit cannot be adjudicated in such circumstances finally by
the Civil court unless and until decision in probate petition. Even the
Hon’ble Delhi High Court while referring to authorities pronounced by
the Hon’ble Apex Court held that, a probate petition and the partition
suit between the same parties ought to be heard and adjudicated
together, in order to avoid multiplicity of proceedings and conflicting
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findings/ decision. However, as the testamentary suit is lying before the
Hon’ble High Court, I am of the humble opinion that, this court has no
power to pass any order of clubbing/transferring the suit. Parties are
liberty to avail the said reliefs, if wish to. Even otherwise it is to be seen
that, in the cited authority it is pertaining to common issues arising in
between probate petition and a suit whereas here question pertaining to
common issues arises in two different suits i.e., present suit and
testamentary suit pending before the Hon’ble High Court. Be that as it
may, in view of my above discussion and looking to the fact that, issue
pertaining to Will of deceased Ramchandra Dalvi is common in both the
suits and the testamentary suit is in earlier in time, the present suit
needs to be stayed. Therefore, my answer to point no.1 is in the
affirmative.
As to point no.2:
10. In view of my above discussion, I pass the following order:
ORDER
Notice of motion No.544/2018 stands allowed and
made absolute in terms of prayer clause (a).
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.13.06.2023 (C.R. No.1)
Dictated on : 13.06.2023
Transcribed on : 13.06.2023
Checked & Signed on : 13.06.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 15.06.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 13.06.2023
JUDGMENT/ORDER signed by P.O. on 14.06.2023
JUDGEMENT/ORDER uploaded on 15.06.2023
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