1 This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner questioning legality and validity of the order dated 27th September 2011 passed by the learned Principal District Judge, Rajkot, below Exh.5 in Civil Misc. Application No.565 of 2008 (new No.103 of 2011).
2 The petitioner filed Civil Misc. Application No.565 of 2008 before the District Court, Rajkot, with a prayer to revoke succession certificate, which was granted vide order dated 3.11.2007 passed in Civil Misc. Application No.1143 of 2007.
3. In the earlier round of litigation, this Court [Coram: K.S. Jhaveri,J] passed order dated 21.1.2011 in Special Civil Application Nos. 551 of 2011, 16741 of 2010 and 16745 of 2010, as under:
"All these petitions arise out of the common orders and therefore, they are disposed of by this common judgment.
1. In S.C.A. No.551/2011, challenge has been made to the order passed below application Exhibit-83 dated 30.11.2010 as also the order passed below application Exhibit-5 dated 09.12.2010 filed in Civil Misc. Appeal No.565/2008 by the learned 4th Addl. Sr. Civil Judge, Rajkot, whereby, application Exhibit-83 came to be rejected and application Exhibit-5 was allowed.
In S.C.A. No.16741/2010, challenge has been made to the order passed below application Exhibit-83 dated 30.11.2010 by the learned 4th Addl. Sr. Civil Judge, Rajkot, whereas, in S.C.A. No.16745/2010, challenge has been made to the communication dated 19.04.2010 of the Principal District Judge, Rajkot, whereby, the concerned learned 4th Addl. Sr. Civil Judge, Rajkot has been informed that it is not required to consider the application for revocation of the succession certificate and therefore, the matter be proceeded on merits.
2. Heard learned counsel for the respective parties at length and perused the documents on record. During the course of hearing, a consensus has been arrived at between the parties on the basis of which the following order is passed;
(i) The entire proceedings of Civil Misc. Appeal No.565/2008, including applications Exhibit-83 & 05 pending before the District Court, Rajkot are transferred and ordered to be placed before the learned Principal District Judge, Rajkot for decision on merits.
(ii) The learned Principal District Judge, Rajkot will take up the hearing of Exhibit-5 application on 01.02.2011, on which date all the parties shall remain present before him, either personally or through their Advocates and after the Exhibit-5 application is decided, the learned Principal District Judge, Rajkot shall proceed with the hearing of Civil Misc. Appeal No.565/2008.
(iii) The orders passed below applications Exhibit-83 & 05 dated 30.11.2010 & 09.12.2010 respectively passed by the learned 4th Addl. Sr. Civil Judge, Rajkot, as also the communication dated 19.04.2010 of the learned Principal District Judge, Rajkot, shall remain in abeyance until Civil Misc. Appeal No.565/2008 is decided afresh by the learned Principal District Judge, Rajkot.
(iv) The learned Principal District Judge, Rajkot shall render its decision on Civil Misc. Appeal No.565/2008 on or before 30.06.2010.
(v) Both the sides shall maintain status quo until the learned Principal District Judge, Rajkot proceeds with the hearing of Exhibit-5 application afresh.
3. It is made clear that this Court has not entered into the merits of the case and therefore, the learned Principal District Judge, Rajkot shall decide Exhibit-5 application being uninfluenced of the earlier orders dated 30.11.2010 & 09.12.2010 passed by the learned 4th Addl. Sr. Civil Judge, Rajkot and also by this order.
4. With the above observations and directions, the petitions stand disposed of. Direct service is permitted for both the sides."
4 In furtherance of the aforesaid order of this Court, further proceeding qua hearing of Exh.5 application before the District Court, Rajkot, culminated in passing of the order impugned in this present petition.
5 Heard the learned counsels for the parties and perused the record.
6 In the pending application for revocation of certificate of succession under Section 383(b) of the Indian Succession Act, 1925, the petitioner herein filed application Exh.5 for injunction restraining the respondents from transferring the suit property on the ground that the application for revocation of certificate pending before the District Court would otherwise become infructuous and the petitioner will be rendered remedy-less. Upon hearing the parties and on perusal of the documents on record, the learned Principal District Judge, Rajkot, vide order dated 27th September 2011, held that the petitioner had failed to establish a prima-facie case and balance of convenience and, besides, it was not a case where the applicant-petitioner cannot be compensated in terms of money. As against that, the defendants, respondents herein, who had obtained certificate of succession in their favour, could not have been restrained from using the property in question. Such finding recorded by the Court below cannot be said to be in any manner contrary to law governing the principles for consideration of application for injunction. The contention of the learned counsel for the petitioner that a fraud is committed by obtaining succession certificate is the subject matter of the application for revocation pending before the District Court and such contention is to be established, considered and proved before the Court below where such application for revocation is pending and, in the meanwhile, any observation with regard to the contention of learned counsel for the petitioner about fraud or otherwise, if made by this Court in the present proceeding, would cause an undue embarrassment to the Court below in deciding the pending application for revocation as per the time-limit framed by this Court. Considering the overall aspects, it cannot be said that the parameters for exercising power to grant injunction are missed by the Court below while passing the impugned order. In absence of any error of law much less jurisdiction, no case is made out to exercise of power under Articles 226 and 227 of the Constitution of India.
7 Hence, this petition is rejected on the ground that the main application for cancellation of certificate of revocation of probate is being heard by the trial court and, in the meantime, if any injunction is granted or being continued, it will adversely prejudice the pending proceeding before the Court below and affect the finding that will be recorded by the Court below. The ad-interim relief is vacated. There shall be no order as to costs.
8 It is clarified that, if the suit property, which the subject matter of the application for revocation pending before the Court below, is transferred, alienated or disposed of by the respondents herein, the same shall be subject to outcome of the pending application for revocation of certificate of succession under Section 383(b) of the Indian Succession Act, 1925, before the District Court.
(ANANT S. DAVE, J.) (swamy) Top