ARVIND NATHUBHAI DATTANI Vs. MANIBEN KARSANDAS DATTANI

JUDGEMENT

(1.) By this motion,the plaintiff seeks that after condoning the delay in filing out the motion, this court should set aside the order dated 18 January 2011.

(2.) In my view, the suit of the plaintiff has been dismissed on merits after the court proceeded under explanation to Rule 2 of Order 17 of the Code of Civil Procedure (for short "the Code"). As such, the appropriate remedy of the plaintiff is to file an appeal against the decision. The remedy by way of a notice of motion under Order 9 Rule 9 of the Code is misconceived for the reasons indicated below:

(3.) In a testamentary suit filed by the plaintiff for obtaining probate to the alleged will of the testator, the evidence of the plaintiff was recorded on 16 April 2009. The affidavit of the attesting witness was however not filed. The plaintiff stated that the attesting witness was unable to come and applied for witness summons. The witness summons was issued but was not served by the plaintiff. The returnable date of the witness summons was extended upto 21 October 2010. Even then, the witness summons was not served. Plaintiff did not adduce the evidence of any other person. When the matter was called out, the plaintiff was absent. The Judge thereafter dismissed the suit by an order dated 18 January 2011. Perusal of the order dated 18 January 2011 clearly shows that the suit was not dismissed in default under Order 9 Rule 8 of the Code but the suit was dismissed on merits. The court considered the evidence adduced by the plaintiff and observed: "the evidence of the plaintiff alone is of no consequence. Validity of the will cannot be seen without the evidence of the attesting witness". The court came to the conclusion that the will was not proved by the plaintiff and therefore dismissed the suit. It is this order which is sought to be set aside by the present motion.