SARLA JAISWAL Vs. JAIKISHORE JAISWAL AND OTHERS

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution takes exception to the order dated 30.01.2018 whereby the application of present petitioner preferred under Order 4 Rule 1, 2 & 3 of Code of Civil Procedure dated 20.12.2017 was rejected by the Court below.

(2.) The admitted facts between the parties are that the respondent No.1 preferred an application under Section 276 of the Indian Succession Act, 1925 on 20.06.2011 (Annexure-P/1). Upon receiving the information about filing of application pursuant to a paper publication, the petitioner entered appearance in the said case and filed his objection (Annexure-P/2). In addition, an application dated 30.10.2017 (Annexure-P/3) was filed to convert the regular probate application into a regular civil suit. The respondent No.1 filed its response to the said application. The Court below by order dated 25.11.2017 decided to convert the probate proceedings into a civil suit as mandated in Section 295 of the Indian Succession Act.

(3.) The petitioner preferred an application under Order 4 Rule 1, 2 & 3 CPC by contending that the probate proceedings stood converted as a regular civil suit. As per Order 4 Rule 1 CPC, the suit commences from the date of filing of the plaint. The material facts and particulars, cause of action, jurisdiction and limitation etc. have not been described in the main application. Thus, for the reasons stated in the said application, the plaintiff be directed to comply with the requirement of said provisions failing which the civil suit may be rejected. After obtaining reply of the respondent No.1, the Court below passed the order dated 30.01.2018 and rejected the said application preferred by the petitioner.