Gupta, J.:-
(1) The only question involved in this appeal concerns the maintainability of a suit arising on an application for grant of letters of administration with a copy of the will annexed filed by the first respondent in the court of dist. Judge, howrah on november, 26, 1969. The application which was registered as letters of administration suit no. 11 of 1969 relates to the estate of one bibhuti bhusau khan, father of the appellant and some of the respondents including the first respondent. The question as to the maintainability of the suit arises on the following facts: - "sometime in february, 1967, the first respondent, anil kumar khan, had filed a similar application for letters of administration in respect of the estate of his father in the same court which was numbered letters of administration suit no. 2 of 1967. The appellant before us, kanai lai khan, appeared in that suit and filed a written statement on january 2, 1969 the plaintiff of that suit, anil kumar khan, made an application stating that pursuant to a proposal for amicable settlement of all disputes among the parties he did not wish to proceed further with the suit and prayed that "he be permitted to withdraw the suit or the suit be dismissed for non - prosecution''. It appears that kanai lal khan filed an objection to this application. By order no. 137 made on january 3, 1969, the learned district judge found that "no ground has been made out for withdrawing the suit" rejected the application, and directed that "parties must get ready". It appears from the certified copy of the order sheet of the said suit which was produced before us that on january 3, 1969, a petition for the appointment of an administrator pendente lite was fixed for hearing and one would have thought that the learned judge's direction to the parties was to get ready for the hearing of the said petition. Order no. 138 passed later on the same day however records : -
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"defendant no. 2 (kanai lal khan) is ready. The learned lawyer for the plaintiff endorses that he has no instruction. Ordered that the suit be dismissed for non - prosecution"
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(2) It does not appear from the certified copy of the order sheet that the suit was fixed for hearing on that day.
(3) Thereafter on november 26 1969, anil kumar khan made another application for letters of administration in the court of the district judge, howrah, which, as stated already was registered as letters of administration suit no. 11 of 1969. In this application he referred lo the earlier proceeding and allegedinter alia, that he had been misled by the appellant before us to make the application for withdrawal or dismissal of the earlier suit for non - prosecution. On december 22, 1969, kanai lai khan applied before the district judge for dismissal of letters of administration suit no. 11 of 1969 as not maintainable in view of the fact that the earlier suit had been dismissed. By his order dated february 9, 1970, the learned district judge rejected the prayer for dismissal of the suit subject to the condition that the plaintiff paid costs amounting to rs. 50/ - to kanai lal. In this appeal appellant kanai lal khan questions the correctness of this order.
(4) Mr. Amar nath banerjee, learned advocate for the appellant, drew our attention on to section 295 of the indian succession act which provides that in contentions cases for the grant of probate or letters of administration the "proceedings shall take as nearly as may be the form of a regular suit", and section 14 of the code of civil procedure which lays down that the procedure provided in the code in regard to suits "shall be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction"mr. Banerjee argued that these two sections make it clear that the provisions of the code of civil procedure apply to probate proceedings in which there is a contention and that the previous suit having been dismissed for non - prosecution the present suit is barred, under order 9 rule 9 of the code. Order 9 rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. Rule 9 of order 8 so far as it is material for the present purpose enacts that where the defendant appears and the plaintiff does not appeal when the suit is called on for hearing; the court shall make an order that the suit be dismissed. In support of this connection mr. Banerjee relied on a decision of the lahore high court, (1) ruplal v. Manohar lal, a. I. R. 1936 lahore 863.
(5) Before we proceed to consider the lahore case we feel it necessary to refer to one important fact which would seem to remove the very basis on which mr. Banerjee's content on is raised. Order 9 rule 9 apples only if the suit is dismissed wholly or party under rule 8. Rule 8 again is attracted where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. I have already referred to the fact that on the date when the earlier suit was dismissed for non - prosecution, the suit could not have been called on for hearing because the matter that was fixed for hearing on that day was not the suit but an application for the appointment of an administrator pendente lite. The plaintiff had of course made an application for withdrawal of the suit or for dismissal of the same for non - prosecution but that application the learned judge had rejected. Thus the dismissal of the smith was not upon the prayer of the plaintiff nor could it have been under rule 8 of order 9 as the suit was not due to be heard on that day. As such the bar of rule 9 of order 9 cannot apply in this case. This alone is sufficient to dispose of the present appeal but as the question of the maintainability of the seemed application for letters of administration was argued at some length by both the parties, we propose to record our decision on that point also.
(6) It was held in the lahoro case that in view of section 141 of the civil procedure code and section 295 of the indian succession act an application for grant of probate can be dismissed for default under order 9 rule 8 and restored under order 9 rule 9 and that an order refusing to restore such an application would be appellable under order 43 rule 1 (c) of the code. The question whether after an application for probate or letters of administration is dismissed for default a fresh application is barred under order 9 rule 9 did not arise for consideration in the lahore case.
(7) Section 295 of the indian succession act provides that in contentions cases the proceedings shall take the form of a regular suit "as mearly as may be" it does not lay down that the provisions of the code of civil procedure would apply in their entirely to such proceedings. In (2) ramani devi v, kumud bandhu mukherjee, 14 c. W. N. 924, a division bench of this court considered the question whether section 103 of the civil procedure code of 1882 barred a second application for probate after the first application had been dismissed for default under section 102. Sections 102 and 103 of the earlier code correspond respectively to rule 5 and rule 9 of order 9 of the civil procedure code 1908. Referring to section 10s which precluded the plaintiff from bringing a fresh suit in respect of the same cause of action when a suit had been dismissed for default, this court held in ramani v. Kumud that the provision would have no application in probate proceedings. It was pointed out that 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, that if there has been an adjudication on the merits, whether the adjudication be for or against the validity of the will, it is a final settlement of the matter but if probate has been refused not on the merits but merely by reason of the insufficiency of some matter of form or procedure, " there is no adjudication that the instrument is not entitled to probate and therefore it may be again propounded. Their lordship observed:
"it is manifest therefore that if that application by an executor for probate of the will has been dismissed for default, that fact by itself cannot debar an application for probate by another person, for example, a legatee who claims an interest under the will; if so, it would be futile to hold that an executor who has made default, cannot propound the will again"
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(8) In (3) jamuna dasya v. Kailash chandra chowdhury, reported in 49 c. W. N. 636, another division bench - of this court held that order 23 rule 1 of the civil procedure code does not apply to probate proceedings because probate proceedings are not suits and that the provisions of the civil procedure code are to be followed in contentious probate proceedings only so far as they may bs applicable,
(9) The madras high court in (4) ganshamdoss v. Saraswathi bai, a. I. R 1925 madras 861, held following the decision in ramani v. Kumud 14 c. W. N. 924) that the dismissal of an application for probate for default would not bar a second such application. Referring to the decision in ramani v. Kumud, a division bench of the patna high court observed in a case reported in (5) gorakh ahir v. Jamuna ahir, a. I. R. 1943. Pat. , 281, that
"this decision of the calcutta high court, which was pronounced in 1910 and has been held to be good law up to the present day, should be followed in this court also"
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(10) The position, therefore, seems to be well established on the authorities that dismissal for default of an application for probate or letters of administration, not being an adjudication on the question of the genuineness and legal validity of the will, cannot operate as a bar to a second such application. In the result this appeal is dismissed but in the circumstances of the case without any order as to costs. Let the records go down as early as possible. Appeal dismissed.