S.R Roy, J.:— This appeal arising out of a probate proceeding raises a short but tricky point, not hitherto untraversed but to some extent clouded by a host of judicial decisions, some touching the point rather tangentially and some holding conflicting views. The point has been raised from time to time till recent years demanding meticulous judicial care and attention but still leaving scope for some controversy.
2. The petitioner-appellant before us as executor of the Will left by one Sarala Bala Dasi, started a proceeding for the probate of the said Will before the District Delegate at Rampurhat, being Probate Case No. 36 of 1980.
3. A dispute having been raised by the opposite party, a daughter of Sarala Bala, regarding the genuineness of the Will, the matter became contentious and on Aug. 8, 1980 the application was registered as Probate Case No. 56 of 1980 before the learned District Judge, Birbhum.
4. The case was set down for hearing on June 2, 1983 before a learned Additional District Judge but the petitioner having failed to appear when it was called on for hearing, the case was dismissed for default.
5. On June 27, 1983 the petitioner started a Misc. Judicial Case under R. 9 of O. 9 read with S. 151 of the CPC, being Case No. 5 of 1983 for setting aside the order of dismissal and for the restoration of the probate Case to file. The petitioner's case inter alia was that due to his illness he could neither attend the Court on the date fixed for hearing nor could he take any other step.
6. The opposite party contested the case and one of the grounds taken by her was that the provisions of O. 9 R. 9 and S. 151 of the Code were inapplicable to a probate proceeding. This preliminary ground found favour with the learned Additional District Judge and by his impugned order dt. Feb. 14, 1984, he dismissed the petitioner's case upon the view that O. 9 R. 9 of the Code has no application to a probate proceeding.
7. It is against this order that the petitioner has come up in appeal.
8. Appearing on behalf of the appellant, it was submitted by Mr. Mukherjee that applying the provisions of S. 141 of the Code and Ss. 268 and 295 of the Indian Succession Act the learned court below should have held that the provisions of the Civil P.C including those of O. 9, applied to a probate proceeding. Regarding the applicability of S. 141 of the Code he submitted that the rules laid down in O. 9 being matter of procedure, the provisions of R. 9 of the said order were clearly applicable to a probate proceeding in view of S. 141. This apart S. 268 of the Indian Succession Act, according to him, clearly made the provisions of the Code applicable to a probate proceeding and under S. 295 of the said Act a contentious probate proceeding assumes the form and character of a regular suit as under the Civil P.C and such proceedings are regulated by the said Code. That being so, the learned Judge in the Court below according to him, was wrong in dismissing the Misc. Judicial Case for restoration of the probate proceeding on the ground that R. 9 of O. 9 of the Code has no application to such a proceeding. He also submitted that the learned Judge while relying upon the decision of this Court reported in (1974) 78 Cal WN 25 in support of his finding misread and misapplied it inasmuch as the said decision is not an authority for the proposition that O. 9 R. 9 of the Code is not applicable to a probate proceeding.
9. On the other hand, Mr. Roy Chowdhury appearing for the opposite party-respondent contended that the remedy of the petitioner lay in filing a fresh application for grant of probate because O. 9 R. 9 of the Civil P.C has no application to a probate proceeding, as rightly found by the learned court below.
10. We may now examine the rival contentions of the parties on the basis of the relevant legal provisions and the decisions cited before us starting from the celebrated decision of Sir Ashutosh Mukherjee in Ramani v. Kumud (1910) 14 Cal WN 924.
11. It may, however, be useful to discuss the relevant legal provisions at the outset for proper appreciation and understanding of the judicial decisions, which to some extent are conflicting.
12. The Indian Succession Act as it appears, does not lay down the procedure to be followed in a probate proceeding. Section 295 of the Act, however, provides that in contentious cases before the District Judge, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Civil P.C and S. 268 lays down that the provisions of the Code are to apply to such proceedings only in so far as the circumstances of the case will admit.
13. A contentious probate proceeding has, therefore, all the trappings of a regular suit under the Civil P.C and depending upon the circumstances of the case, the provisions of the Code are to apply to such proceedings.
14. In this connection reference may also be made to S. 141 of the Code which provides as hereunder:
“141. Miscellaneous proceedings. — The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation…………….”
15. The section, as such, extends the procedure provided in regard to suits to proceedings in civil courts as distinguished from substantive rights.
16. It now seems to be well-settled that a proceeding for grant of probate being an original proceeding, is a proceeding as contemplated by S. 141 of the Code. Therefore, such a proceeding clearly attracts the procedure provided by the Code in regard to suits in view of the provisions of S. 141.
And so far there is no dispute.
17. However, the most vital question for our present purpose as regards to the applicability of S. 141 is whether the rules laid down in O. 9 of the Code are really matters of procedure or they confer substantive rights. In case, they are really matters of procedure, R. 9 of the said Order may be applied unhesitatingly to a probate proceeding dismissed for default, simply with the aid of S. 141 of the Code and irrespective of what Ss. 268 and 295 of the Indian Succession Act provide.
18. The point came up for consideration before a Full Bench of the Gauhati High Court in Nira Kanta v. Bedoi, AIR 1977 Gauh. 70. There it was urged by the learned Counsel appearing for the respondent that an application under O. 9 R. 9 of the Code was incompetent for restoration of a probate proceeding inasmuch as it granted a substantive right to the plaintiff to file an application for revival of a suit dismissed for default, while S. 141 of the Code made only the procedural part of the Code applicable to a probate proceeding. But this question was unfortunately not gone into and was left undecided with the following observations:
“The Code of Civil Procedure is a general law, while the Indian Succession Act is a special, law. When there is a special law, the general law does not apply. In the instant case when there is a special law engrained in S. 268 of the Act for the regulation of the proceedings of the Court of the District Judge in relation to the grant of probate, the general law engrained in S. 141 of the Code would not apply. We need not, therefore, examine the content of S. 141 of the Code”.
19. In a recent Bench decision of this Court in Anima Dutta v. Bhanumati Dutta. (1984) 1 Cal HN 182 the matter which came up for consideration was whether an ex parte order in a contentious probate suit could be set aside under O. 9 R. 13 of the Civil P.C While answering the point in the affirmative, the Court observed, “we fail to see why the appellant cannot maintain an application under O. 9 R. 13 of the Civil PC for setting aside of the decree. We are of the view that the rules laid down in O. 9 relating to hearing of a case ex parte as well as application for setting aside an ex parte decree are matters of procedure”.
20. Though the above view comes as a mere expression of opinion without anything more, we hold ourselves to be bound by it. As a matter of fact, it appears to us that Rr. 9 and 13 of O. 9 of the Code merely lay down the procedure for restoration of a suit dismissed for default or decided ex parte. And that being so, O. 9 R. 9 of the Code, in our view, can be switched into action for setting aside an order of dismissal for default in a probate proceeding by operation of S. 141 of the Code.
21. It was contended by Mr. Mukherjee, appearing on behalf of the appellant, that in view of S. 141 of the Code and S. 268 of the Indian Succession Act an order of dismissal for default in a probate proceeding is obviously an order passed under R. 8 of O. 9 for restoration of the suit, the only remedy is an application under R. 9 of O. 9. In the view we have taken of the matter, we are quite in agreement with Mr. Mukherjee.
22. Of course, where the cause of action is not identical, an alternative remedy is also available to the plaintiff, namely, filing of a separate suit or an application within the period of limitation where such a period is prescribed. This takes us to the branch of decisions which are authorities for the proposition that where an application for grant of probate is dismissed for default a fresh application can be maintained there being neither any cause of action as such for the proceeding nor any prescribed period of limitation.
23. One of the earliest authorities for such a proposition is the Bench decision of this Court in Ramani v. Kumud (1910) 14 Cal WN 924. Incidentally, this decision, which was followed in a number of subsequent decisions of different High Courts, has sometimes been misinterpreted as an authority for the proposition that O. 9 R. 9 of the Code is not applicable to a probate proceeding dismissed for default.
24. In that case, a contentious probate proceeding having been dismissed for default of the petitioner, a separate application for probate of the same Will was filed, but it was dismissed on the ground that it was barred by the principles of res judicata. On an appeal before the High Court it was held that there being no adjudication on merits of the previous proceeding, there was absolutely no scope for application of the principles of res judicata. In that connection a question was raised whether S. 103 of the old Code (O. 9 R. 9 of the Code of 1908) operates as a bar to a subsequent application for probate, because the section provides that when a suit is dismissed for default under S. 102 (O. 9 R. 8), the plaintiff is precluded from bringing a fresh suit on the same cause of action. In that connection the Court observed: “These words have obviously no application to the case before us. When an executor presents an application for probate of a Will, he cannot be regarded as a plaintiff who brings a suit in respect of some cause of action…….It would not, in our opinion, be right to apply to such a proceeding the provisions of section 103- which by their very terms are plainly intended to apply to suits for enforcement of causes of action”.
25. This decision, therefore, is an authority for the proposition that the bar of O. 9 R. 9 is not applicable to a probate proceeding dismissed for default of the petitioner and a fresh application for probate of the same Will is quite maintainable in law. It nowhere holds that O. 9 R. 9 as such, is not applicable to a probate proceeding.
26. Similarly, the subsequent Bench decision of this Court in Kanailal v. Anil Kumar, (1974) 78 Cal WN 25 is also an authority for the same proposition that where an application for probate or letters of administration is dismissed for non-prosecution and not on an adjudication on merits, a fresh application for probate or letters of administration is not barred and the bar of O. 9 R. 9 of the Code does not apply to such a case. This decision in our view and as was rightly pointed out by Mr. Mukherjee, was misread and misinterpreted by the learned court below as an authority for the proposition that O. 9 R. 9 of the Code as such did not apply to a probate proceeding dismissed for default.
27. It was submitted by Mr. Mukherjee and in our view rightly, that filing of a fresh application for probate of the same Will after the dismissal of the former application for default, is only an alternative remedy which does not affect the petitioner's right to have the former application restored under O. 9 R. 9 of the Code. Incidentally, he drew our attention to O. 9 R. 4 which also provides for alternative remedies.
28. Now, among the decisions which have pointedly held that O. 9 R. 9 or R. 13 has no application to probate proceedings, the decision of a learned single Judge of this Court in Nityananda v. Phurubala, (1982) 2 Cal LJ 296 to the effect that the provisions of O. 9 R. 13 of the Code were not applicable for recalling an ex parte order granting probate of a Will, has already been overruled by the subsequent Bench decision in Anima v. Bhanumati, (1984) 1 Cal HN 182.
29. The other decision referred to us is of the Patna High Court as reported in AIR 1943 Pat 281. In that case an application under O. 9 R. 9 of the Code was filed for restoration of a probate case dismissed for default of the petitioner. The said application having been dismissed on merits by the learned Additional District Judge, there was an appeal before the High Court which while relying upon the earlier Bench decision of this Court in Ramani v. Kumud, (1910) 14 Cal WN 924 observed that: “The petitioner will now have to file another application for grant of probate. Then the matter will proceed as a contentious suit after a caveat has been entered. The provisions of O. 9 R. 9 of the Civil P.C have no application in the circumstances.”
30. We respectfully differ from this decision as in our opinion it failed to consider the proper import of the decision reported in (1910) 14 Cal WN 924 which, as already seen, is only an authority for the proposition that only the bar of O. 9 R. 9 did not apply to a probate proceeding dismissed for default and a fresh application for probate of the same Will is maintainable. As already pointed out, it is not an authority for the proposition that O. 9 R. 9 as such has no application to such proceedings. Incidentally, the decision reported in AIR 1943 Pat 281 has not offered any reason independently for non-applicability of the provisions of O. 9 R. 9 of the Code to a probate proceeding.
31. Among the later decisions, the Patna High Court in Tribeni v. Shankar, AIR 1971 Pat 391 has held that the provisions of O. 9 R. 13 of the Code are applicable to probate proceedings and the said decision has been followed by this High Court in Anima Dutta v. Bhanumati Dutta, (1984) 1 Cal HN 182 where on the basis of S. 141 of the Code and Ss. 268 and 295 of the Indian Succession Act, it has been held that the provisions of O. 9 R. 13 of the Code applied to probate proceedings.
32. More to the point at issue before us is the Full Bench decision of the Gauhati High court in Nira Kanta v. Bedoi, AIR 1977 Gauh. 70 where it has been held that an application under R. 9 of O. 9 of the Code lies for setting aside an order dismissing an application for probate for default of the petitioner.
33. We are in respectful agreement with these decisions. We, accordingly, hold that in view of S. 141 of the Code and particularly in view of Ss. 268 and 295 of the Indian Succession Act, R. 9 of O. 9 of the Code is applicable to a probate proceeding dismissed for default and may be pressed into action for its restoration.
34. The learned Additional District Judge, in our view, was, therefore, wrong in dismissing the Misc. Judicial Case No. 5 of 1983 under R. 9 of O. 9 of the Civil P.C on the grounds that it was not maintainable.
35. The appeal is, accordingly, allowed on contest. The impugned order dt. Feb. 14, 1984 passed by the learned Judge is hereby set aside and the learned Judge is directed to dispose of the Misc. Judicial Case on its merits.
36. Since the opposite party has filed a suit for partition being Title Suit No. 18 of 1980 in the Court of the Subordinate Judge at Birbhum claiming a moiety share in the properties which are the subject-matter of the probate case and since that suit remains stayed pending disposal of the probate case, the learned court below is directed to speed up the disposal of the Misc. Judicial case and thereafter the probate case if it is restored to file.
37. The connected application is also disposed of on the same terms.
38. No order is made for costs.
39. Let a copy of this order be sent to the court below forthwith.
40. No formal decree need be drawn up.
41. Just after the delivery of the judgment the learned Advocate appearing for the respondents conceded that, for expeditious disposal of the matter, the Misc. Judicial case under O. 9 R. 9 of the Civil P.C may be allowed and the learned court below may be directed to dispose of the probate case as early as possible.
42. In the above view of the matter, the Misc. Judicial case under 0.9 R. 9 of the Code is allowed. The order of dismissal for default passed in the probate case is hereby set aside and the case is restored to file.
43. The learned court below is now directed to dispose of the probate case as early as possible and preferably within six months from the date of receipt of this order, if not otherwise inconvenient.
Anil K. Sen, J.:— 44. I agree with my learned brother in his conclusion that the learned Additional District Judge is wrong in his conclusion that an application under O. 9 R. 9 of the Civil P.C for restoration of a probate proceeding dismissed for default is not maintainable.
45. The first reason assigned by him is clearly based on misreading of an earlier decision of this court in the case of Rathindra v. Jyoti Bikash AIR 1975 Cal 377. Relying on the said decision he seems to have taken the view that S. 141 of the Code cannot be evoked for applying O. 9 R. 9 of the Code to a probate proceeding. Unfortunately, he failed to appreciate that in the said decision this court merely held that a proceeding under O. 9 R. 9 of the Code is not an original proceeding to which by virtue of S. 141 of the Code the provisions of O. 39 Rr. 1 and 2 of the Code can have no application. That decision itself indicates that other provisions of the Code relating to suits may be invoked and made applicable to a probate proceeding in view of S. 141 of the Code. The learned Additional District Judge made a confusion in not taking note of the distinction between a proceeding under O. 9 and application of O. 9 to other original proceedings like probate proceeding.
46. The second reason assigned by the learned Additional District Judge is that O. 9 R. 9 or O. 9 R. 13 can have no application on its terms to a probate proceeding. Reliance has been placed on a Bench decision of this court in the case of Kanailal Khan v. Anil Kr. Khan (1974) 78 Cal WN 25. It must be stated that on this point there is some divergence of judicial opinion. The learned single Judge of this court in the case of Nityananda v. Phurubala (1982) 2 Cal LJ 286 held that O. 9 R. 13 of the Code cannot be invoked for reopening a grant made in a probate proceeding. That view was dissented from in a Division Bench decision in the case of Anima Dutta v. Bhanumati (1984) 1 Cal HN 182. In my view, the real import of the decision in the case of Kanailal Khan and the earlier decisions of this court on the point reviewed in that case is often misunderstood. All these decisions are good authority for the proposition that once a probate proceeding is dismissed for default without adjudication on merits, a fresh proceeding for grant would not be barred under O. 9 R. 9 of the Code since such a proceeding for grant is not based on a cause of action. But O. 9 R. 9 has two parts, while the first part bars a fresh suit based on the same cause of action, the second part provides for restoration of such a suit where the default is well explained by proof of sufficient cause for the default. When apart from S. 141 of the Code. S. 295 of the Indian Succession Act, expressly provides that such a proceeding shall take the form of a regular suit according to the provisions of the Civil P.C there is no reason why the second part of O. 9 R. 9 cannot be invoked for the purpose of restoring such a proceeding dismissed for default. This view finds support from the decision of the Lahore High Court in the case of Ruplal v. Manohar AIR 1936 Lah 863 and the earlier decisions of this court including the decision in the case of Kanailal Khan does not really militate against this view.
Appeal allowed.