R S LODHA Vs. LAXMI DEVI NEWAR

JUDGEMENT

(1.) THE Judgment of the Court was as follows: the Court : On 9th May, 2008 in terms of the direction of the Hon'ble supreme Court this Court took up hearing of the Testamentary Suit being t. S. 6 of 2004 (previously PLA 204 of 2004-In the goods of Priyamvada Devi birla, since deceased ).

(2.) MR. A. K. MITRA appearing with Mr. P. Chatterjee, learned Senior Advocates for the plaintiff/ applicant raised the question of jurisdiction of this Court contending that there has been no lawful assignment of the said testamentary matter. Their basic arguments were noted in the order dated 9th May 2008. Counter-arguments advanced by Mr. S. Pal appearing with Mr. S. P. Sarkar, senior advocates, on behalf of the defendants were also noted. In addition thereto, on several days thereafter detailed arguments were advanced. Before detailed arguments were advanced all the xerox copies of the orders of assignment made by the then Hon'ble Acting Chief Justice had also been supplied to the parties. Presently argument center round in relation to PLA 204 of 2004 now Testamentary Suit (T. S. in short) No. 6 of 2004 on the above question. Mr. A. K. Mitra, learned senior advocate, while referring to the order of assignment in connection with the aforesaid matter, submits that Order dated 30th August, 2004 passed by the Hon'ble Justice Subhro Kamal mukherjee in connection with G. A. No. 3335 of 2004, having reference to PLA no. 204 of 2004 must be read objectively. He submits that although in the order of release the application for grant of Probate has been mentioned, actually it was not possible for the learned Judge to release the application for grant of Probate on 30th August, 2004 because the same did not and could not appear in the list for hearing and only the interlocutory application in connection therewith being G. A. No. 3335 of 2004 appeared in the list. As such intention of the learned Judge was to release the matter being G. A. No. 3335 of 2004 not to release application for grant of Probate. The order of assignment was obviously passed consequent upon the aforesaid order and this will appear from the docket and the letter written by Mr. N. G. Khaitan. The order of assignment records "the matter now be heard". Obviously, the matter meant and/or related to the said G. A. No. 3335 of 2004 and could not relate to PLA 204 of 2004. If the other orders of assignment are read it will be clear that the intention of the Hon'ble Judge, while releasing the matters, was to release the interlocutory application and not to release the original application. In any event, he contends that the said PLA No. 204 of 2004 even if it is assumed that the same was assigned to this Court this matter cannot be heard by this Bench as the status of the Probate proceedings has now been changed from the nomenclature of PLA 204 of 2004 to regular testamentary Suit on appropriate order being passed by this Court on appropriate application. He has drawn my attention to the relevant provision and portion of the Original Side Rules viz. Chapter XXXV for describing various proceedings adopted by this Court. The PLA, according to him, is used as grant of Probate when there has been no contest at all and once there is contest on setting down the matter as a 'contentious cause and is treated as regular suit, being Testamentary Suit nomenclature of PLA stands extinguished. Consequently, the effect of order of assignment ceases the moment the said PLA is registered as Testamentary Suit. Since there has been no fresh assignment of Testamentary Suit to this Court this Court cannot hear out this matter.

(3.) MR. S. Pal, learned senior counsel for the defendants, Caveator and caveatrix, submits that this Court after original matter having been assigned, heard number of proceedings and passed several orders and no one raised the question of jurisdiction. In fact, this Court had passed an order on the application made by the petitioner for treating this application as a contentious cause and by such order the said PLA No. 204 of 2004 was converted to Testamentary Suit. This Court heard out the application for discharge of Caveats at length and the judgment and order of this Court was taken to appeal Courts right from the first appellate Court to the Hon'ble Apex court. At no point of time, the question of jurisdiction was raised and the hon'ble Apex Court has decided the matter on merit. Similarly, application for Administrator pendente lite was also heard by this Court in connection with the aforesaid testamentary suit, at that time also question of jurisdiction was not raised. The judgment and order passed by this Court in the application for Administrator pendente lite was taken to Appeal Court and before the Appeal Court question of jurisdiction was not raised. Now, at this stage, for oblique motive to frustrate the order of the Supreme Court this point has been taken.