Friday, 13 November 2015

Whether suit of plaintiff can be dismissed if plaintiff deliberately remains absent before court commissioner for getting her evidence Recorded?

The Court Commissioner has also in her two reports dated 16 th April, 2014 and 11th September, 2014, set out in detail the number of meetings held and the opportunities given to the appellant to present herself for recording  of her evidence. The appellant had made it impossible for her evidence to be recorded by the Court Commissioner. Considering the conduct of the appellant, as is evident from the record, no indulgence whatsoever is warranted.
Bombay High Court
Devyani G. Patel Shah vs Pankaj Shah And Anr on 19 January, 2015
Citation; 2015(5) ALLMR864
CORAM : V.M.KANADE & REVATI MOHITE DERE, JJ.

1. By this appeal, the appellant takes exception to the order dated 8th October, 2014, passed in Notice of .Motion (L) No.75 of 2014 in the aforesaid Testamentary Suit.
2. The appellant, who claims to be the wife of the deceased had filed the aforesaid testamentary petition in this Court in 2010, which was subsequently converted into a testamentary suit. The appellant was required in the said suit, to prove the purported will of the deceased made by him on 14th February, 1996 by leading her own evidence as well as the evidence of the attesting witnesses. After issues were framed on 8 th February, 2011, the appellant filed her affidavit of evidence some time in July, 2011. Vide order dated 27th January, 2014, the Court Commissioner was appointed to This Order is modified/corrected by Speaking to Minutes Order 3/12 APP.643.2014(c).doc record the cross examination of the appellant. It appears from the record, that the appellant delayed the progress of the case, by either changing her advocates and by not appearing before the Court Commissioner on several occasions, despite the undertaking given to this Court, and as such did not co-operate with the Court Commissioner. In view of the same, vide order dated 7th May, 2014, the learned Single Judge allowed the Notice of Motion which was filed by the respondents herein, for dismissal of the testamentary suit for want of prosecution by the appellant. We have perused the reasons assigned by the learned Single Judge and do not find any infirmity warranting interference in the same.
3. Learned Counsel for the Appellant submitted that the appellant is ready to co-operate in the proceedings and seeks indulgence. He contended that the delay was occasioned as the appellant had changed her lawyers.
4. On the other hand, learned counsel appearing on behalf of the respondents vehemently opposed the grant of any reliefs in favour of the appellant. He contended that the deceased had died intestate and that the This Order is modified/corrected by Speaking to Minutes Order 4/12 APP.643.2014(c).doc appellant was not the wife of the deceased but was only a caretaker. He submitted that the appellant was deliberately and intentionally delaying the progress of the case by not examining herself or her attesting witnesses. He contended that the appellant has been abusing the process of law by filing several proceedings with regard to the properties of the deceased i.e. the respondent's late father. He further submitted that the delay had resulted in depriving the respondents of their rightful share in the properties. He submitted that the appellant had filed a probate petition in respect of the deceased's estate in the Thane Court in 1997 and that without leading any evidence had withdrawn the same after 13 years i.e. in 2010. He contended that in 1999 the appellant filed a petition seeking revocation of the letters of administrations granted to the respondents by this Court in 1997 in respect of their father's estate. Pursuant to her petition seeking revocation, this Court was pleased to stay the letters of administrations granted to the respondents. He submitted that as the appellant had not pursued the said petition, the same came to be dismissed in 2007 i.e after 8 years. Again after 3 years, the appellant's revocation petition came to be restored by this Court on 23rd July, 2010. The said petition was however adjourned sine die, till after her probate petition filed in Thane Court was disposed off. He This Order is modified/corrected by Speaking to Minutes Order 5/12 APP.643.2014(c).doc submitted that after withdrawing the probate petition filed by the appellant in the Thane Civil Court in 2010, the appellant filed the present petition.
He submitted that even in the present petition, the appellant failed to co-
operate with the Court Commissioner, who was appointed to record her evidence and failed to abide by the undertaking given to the Court, by not participating in the proceedings, which ultimately resulted in the dismissal of the suit. He submitted that the two reports submitted by the Court Commissioner bear out the said facts.
5. Learned Counsel for the respondents further submitted that the sole intent of the appellant was to keep the probate petition pending, so as to enable her to enjoy the benefit of the stay order to the letters of administrations which were granted in favour of the respondents in 1997.
He contended that as a result of the stay granted in the revocation petition, to the order passed in the letters of administrations, the respondents were being deprived of their rightful share in the properties of the deceased, since 1997.
This Order is modified/corrected by Speaking to Minutes Order 6/12 APP.643.2014(c).doc
6. We have heard the learned counsels at length. Perused the petition along with the documents, the replies filed by the parties and the impugned order passed by the learned Single Judge.
7. The case has a chequered history. It appears that the appellant had filed a petition in the Thane Civil Court seeking probate of the alleged will dated 14th February, 1996 of the deceased. The said petition was filed by the appellant in her maiden name 'Devyani Patel', where she had described herself as a 'caretaker' of the deceased in the said petition.
Although the said petition was filed in 1997, no steps were taken by the appellant either to serve the citations on the respondents nor had she led any evidence in support of her petition. Infact, the said probate petition filed in the Thane Civil Court in 1997, was withdrawn by her, after almost 13 years i.e. in 2010. In the interregnum, the respondents filed letters of administrations for the estate of their late father in 1997 in this Court, which was granted by this Court vide order dated 19 th June, 1997. The appellant on learning of the said order, filed a petition seeking revocation of the order granting letters of administrations, in favour of the respondents in 1999. The appellant had alleged in the said revocation petition that she was This Order is modified/corrected by Speaking to Minutes Order 7/12 APP.643.2014(c).doc married to the deceased on 2nd December, 1989 and had relied on a purported will of the deceased. On the basis of the same, she sought stay to the letters of administrations, which came to be granted by this Court.
Thereafter, the appellant did not pursue the said revocation petition, as a result of which the same was dismissed by this Court vide order dated 14 th December, 2007. It was only in 2010 that the revocation petition was restored i.e. after almost 3 years, at the behest of the appellant. It appears that after restoring the petition, the same was adjourned sine die by this Court and was to be taken up only after the probate petition which was pending in the Thane Court was finally disposed off. Thereafter, the appellant withdrew the probate petition filed in the Thane Court in 2010 and filed the present petition. The learned Single Judge vide order dated 12 th January, 2011, on the petition preferred by the appellant, again stayed the order granting letters of administrations in favour of the respondents, till the probate petition was decided (now Testamentary Suit No.49 of 2010).
Issues came to be framed in the aforesaid Testamentary Suit. The plaintiff filed her affidavit of evidence in the said proceedings some time in 2011.
Thereafter, in January, 2014 a Court Commissioner was appointed for recording the appellant's evidence. It appears from the record, that This Order is modified/corrected by Speaking to Minutes Order 8/12 APP.643.2014(c).doc despite several opportunities given by the Court Commissioner, the appellant failed to appear before the Court Commissioner. Thereafter, an order was passed by the learned Judge of this Court on 7 th May, 2014, wherein, it was observed that the appellant had delayed the progress of the matter and had changed her advocate a number of times, as a result of which, her evidence could not be recorded. The learned Judge also recorded that the appellant had not paid the fees of the Court Commissioner or the steno charges of the commissioner and that only by way of indulgence, one last opportunity was being granted to the appellant to proceed with her evidence, on payment of fees of the Court Commissioner and steno charges. It is pertinent to note, that the appellant had undertaken to the Court to remain present before the Court Commissioner on the next date of recording of the evidence i.e. some time in the second week of June, 2014 and thereafter. The appellant's undertaking was accepted. The learned Judge had further clarified, that if the appellant failed to co-operate, her evidence would be closed and the Notice of Motion being Notice of Motion (L) No.75 of 2014, filed by the respondents herein, in the aforesaid Testamentary Suit would be heard. It may be noted, that a Notice of Motion was filed by the respondents in April, 2014 seeking dismissal of the This Order is modified/corrected by Speaking to Minutes Order 9/12 APP.643.2014(c).doc appellant's Testamentary Suit and in the alternative for vacating of the order of the stay passed by the learned Single Judge on 12th January, 2011 in Miscellaneous Petition No.23 of 1999 in Testamentary Petition No. 99 of 1999. It appears that despite an undertaking given by the appellant to this Court which was recorded in the order dated 7 th May, 2014, the appellant breached the said undertaking and failed to appear before the Court Commissioner, despite the Court Commissioner giving the appellant several opportunities to appear before her. The said fact has been noted by the learned Single Judge in the order dated 8 th October, 2014 in paragraphs 5 to 9, which reads as under :-
"5. Counsel on behalf of the defandants/caveators has shown a number of letters of the Court commissioner regarding how the plaintiff failed to appear for her cross-
examination. One such correspondence is an email dated 1st August, 2014 under which the Court commissioner fixed the next meeting on 4th August, 2014, at 1.30 p.m., in the Bombay Bar Association.
6. Thereafter the commissioner sent an email dated 5 th August, 2014, recording that the plaintiff failed to attend the meeting on 4th August, 2014 and fixed a meeting on 7th August, 2014, which also the plaintiff failed to attend.
This Order is modified/corrected by Speaking to Minutes Order 10/12 APP.643.2014(c).doc
7. The commissioner by her letter dated 11 th August, 2014, recorded the above facts and said that no date for further cross-examination could then be fixed unless the plaintiff informed her that she was interested in proceeding with the cross-examination. There has been no reply from the plaintiff.
8. Advocate on behalf of the defendants/caveators has, therefore, written a preacipe to the Prothonotary & Senior Master of this Court to place the matter on board as the plaintiff has been avoiding the cross-examination. Thereafter the Advocate for the defendants has sent an email to the Advocate for the plaintiff seeking production of the Notice of Motion.
9. Consequently the Advocate for the plaintiff has appeared and has argued the Notice of Motion. He has requested still a further date for the plaintiff on the ground that the plaintiff is an old woman. In fact because the plaintiff is an old woman, she must finish her cross-examination at the earliest and as directed by the Court upon her own undertaking. The plaintiff has failed to do so. The plaintiff has breached the order dated 7th May, 2014. The Court Commissioner has given more dates of her cross-
examination then were directed by the Court also."
This Order is modified/corrected by Speaking to Minutes Order 11/12 APP.643.2014(c).doc
8. From the record, it is evident that the appellant was only trying to procrastinate the proceedings and despite an undertaking given to this Court had failed to abide by the same. The appellant has not been able to give any compelling reason or sufficient cause for not appearing before the Court Commissioner. Coupled with the said conduct, it also appears that the appellant filed proceedings, but failed to pursue them. The same is evident from the record ; the appellant had filed a probate petition in the Thane Civil Court in 1997 which was kept pending by her for 13 years, without serving citation on the respondents and which was eventually withdrawn by her in 2010 ; the revocation petition filed by her in this Court in 1999 challenging the order granting letters of administrations in favour of the respondents was dismissed in 2007 and restored in 2010 ; and after withdrawal of the probate petition from the Thane Court, the appellant filed the present proceedings in 2010. The appellant is enjoying the benefit of the stay order granted by this Court to the order granting letters of administrations, which was decided in favour of the respondents, in 1997.
The Court Commissioner has also in her two reports dated 16 th April, 2014 and 11th September, 2014, set out in detail the number of meetings held and the opportunities given to the appellant to present herself for recording This Order is modified/corrected by Speaking to Minutes Order 12/12 APP.643.2014(c).doc of her evidence. The appellant had made it impossible for her evidence to be recorded by the Court Commissioner. Considering the conduct of the appellant, as is evident from the record, no indulgence whatsoever is warranted.
9. In view of the aforesaid, we do not find any infirmity in the order passed by the learned Single Judge and consequently dismiss the appeal.

    REVATI MOHITE DERE, J.                                                                V.M.KANADE, J.
      
   





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