* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A.No.14577/2011 (by the plaintiffs under Section 24 read with Section 151 CPC) in CS(OS)No.2114/2010
Date of Decision: 18th July, 2012 IN THE MATTER OF SANDEEP BAHL & ANOTHER Plaintiffs Through : Mr. Sanjiv Kakra with Mr. Bharat Arora, Advocates versus SHUBH KUMAR RANGE & OTHERS Defendants Through : Ms. Seema Singh, Adv. for D-1. Mr. Sanjeev Aggarwal, Adv. for D-2.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J. (Oral)
1. This application has been filed by the plaintiffs praying inter alia for withdrawal of Probate Case No.21/2011, filed by the defendant No.1 and pending before the court of learned ADJ, Saket Courts, and also for its consolidation and trial with the present suit.
2. Counsel for the plaintiffs states that the accompanying suit for partition, possession, declaration, rendition of accounts, etc., has been filed by the plaintiffs in respect of the estate of their material grandparents and that defendant No.1 has filed a petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate/Letters of Administration in respect of a Will dated 20.4.2006 allegedly executed by the maternal grandfather of the plaintiffs, who is the father of defendant No.1, which is pending adjudication in the court of learned ADJ. It is submitted that it would be expedient and in the interest of justice if the aforesaid probate case is withdrawn from the District Court and tried along with the present suit as the defendant No.1 has relied on the contents of the aforesaid Will in her written statement and the said Will is relevant for consideration in the present proceedings.
3. Counsel for the applicants/plaintiffs supports his request for withdrawal of the aforesaid probate case and consolidation thereof for trial along with the present suit by relying on the judgments in the case of Virender Gupta vs. Nitender Gupta & Ors., reported as 31 (1987) DLT 406 and in the case of Delhi State Committee of Communist Party of India (Marxist) vs. Rajesh Malik & Ors., reported as 69 (1997) DLT 622.
4. Counsel for the non-applicant/defendant No.1 opposes the prayer made in the application and submits that the validity of the Will in question is subject matter of the proceedings pending at an advance stage before the probate court that has exclusive jurisdiction to hear and decide the same and that the outcome thereof shall have a direct bearing on the present proceedings. She states that the aforesaid probate case was filed prior to the institution of the present suit, i.e., in the year 2009 and the same is at an advance stage of trial as the evidence of the petitioners therein has already been concluded and the matter is now listed on 24.8.2012 for recording of the evidence of the objectors (plaintiffs herein). It is thus submitted that in the event of the Will in question is proved in the probate case, then it would have a direct bearing on the present suit and proceedings therein, which may therefore be deferred to await the decision taken in the probate proceedings. She further states that the present suit is at a nascent stage as only the pleadings have been completed and admission/denial of documents has yet to take place and if the probate case is withdrawn from the trial Court for consolidation with the present case, it shall result in unnecessary and avoidable delay. It is lastly stated that this application is only a ruse adopted by the plaintiffs to delay the proceedings in the probate case and the same ought to be dismissed.
5. This Court has heard counsels for the parties and has considered their respective submissions. It is undisputed that defendant No.1 had filed a probate case in the year 2009 in respect of a Will dated 20.4.2006 allegedly executed by late Shri Harish Chandra, whereas the present suit was instituted by the plaintiffs after one and a half years from the date of filing the aforesaid probate case. It is also not denied that the proceedings in the probate case are at an advance stage and on the verge of conclusion as the evidence of only the objectors therein is left to be recorded, whereas the evidence of the petitioner therein has already been recorded.
6. A perusal of the case file shows that in the present suit although the pleadings are complete, but admission/denial of documents has yet to take place and the issues can only be framed thereafter. In such circumstances, the judgment in the case of Virender Gupta (supra) does not come to the aid of the plaintiffs for the reason that in the aforesaid case, the Division Bench had found the issues framed in one suit, as embracing and covering the entire dispute between the parties in both the cases. In the present case, as noted above, the issues have yet to be framed in the suit.
7. As regards the second judgment relied upon by learned counsel for the plaintiffs in the case of Delhi State Committee of Communist Party of India (Marxist) (supra), it was observed in the aforesaid judgment that it is desirable that where there are two suits/matters which raise certain common questions of fact and law, they should be tried at the same place and by the same Judge to avoid multiplicity in trial of the same issues and conflict of decisions. In view of the fact that proceedings in the aforesaid probate case are at an advance stage, the question of any conflict of decisions does not arise in the present case at all. In fact, it would only be appropriate for this Court to await the outcome of the aforesaid probate case so as to ensure that there is no conflict of decisions in the suit with that of the probate case. However, to avoid any delay in the meanwhile, admission/denial of documents be completed, for which purpose, the matter is listed before the Joint registrar on 23.8.2012, and issues can then be framed thereafter.
8. In the aforesaid facts and circumstances, the prayer made in the present application is declined and the application is dismissed.
(HIMA KOHLI)
JULY 18, 2012 JUDGE sk