SITA RAM SAO Vs. SHANTI DEVI

JUDGEMENT

(1.) I have heard the learned Senior Counsel, Mr. Kamal Nayan Chaubey on behalf of the Petitioner. This review application has been filed by the Petitioner for review of the order dated 8.7.2011 passed by me in C.W.J.C. No. 10652 of 2011 whereby the writ application was dismissed. It appears that the present Petitioner filed application under Section 10 of the Code of Civil Procedure for stay of Eviction Suit No. 15 of 2008 on the ground that Probate Case No. 18 of 2010 is pending before the Addl. District Judge, Gaya. The learned Trial Court by terms of order dated 6.5.2011 rejected the said application on the ground that the stage of eviction suit is that the same has been fixed for final argument and the Petitioner has partially argued the case and thereafter this petition has filed with a view to delay the disposal of the eviction suit which requires speedy trial. As stated above, the writ application was dismissed by me on 8.7.2011.

(2.) The Learned Counsel for the Petitioner submitted that while rejecting the writ application, various judgments, i.e., 1997 2 PLJR. 649, 1994 2 PLJR 750 and 1987 PLJR(SC) 53 have not been considered and therefore, the order may be reviewed.

(3.) The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneous trying to parallel suits in respect of the same matter in issue. The provision is merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant rather for a Court to decide what will be the best course to be adopted for expeditious disposal of the case. Admittedly, in the probate case, the only question that may be decided is as to whether the Will in question is genuine or not. In the said probate case, the Plaintiff is not a party. Unless probate is granted, the Petitioner is precluded from claiming title. So far eviction suits is concerned, the issue to be decided is whether there is relationship of landlord and tenant and whether any grounds for eviction as enumerated under Section 11 of the B.B.C. Act arises or not. Therefore, the scope of both the suits and courts are entirely different. It is also well settled that in the probate proceeding the validity of the execution of Will in respect of properties mentioned is decided but it does not declare or decide upon the validity, legality of disposition contained therein. In a case of disputes as regard disposition made therein, the parties can institute proceedings in Civil Courts without impugning the execution of the Will which has already been decided in the probate proceedings.