Gauhati High Court
Sharmila Vijay Shetty vs B And A Ltd. And 2 Ors on 13 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/32
GAHC010174672024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2553/2024
SHARMILA VIJAY SHETTY
R/O AT B-32, TURF VIEW, SETH MOTILAL SANGHI MARG, MUMBAI-18
VERSUS
B and A LTD. AND 2 ORS
AN EXISTING COMPANY WITHIN THE MEANING OF THE COMPANIES ACT,
1956 AND HAVING ITS REGD. OFFICE AT INDU BHAVAN, MAHATMA
GANDHI ROAD, JORHAT-01, ASSAM
2:HDFC BANK LTD.
CARRYING ON BUSINESS
INTER ALIA
FROM 11
U.N. BRAHMACHARI STREET
KOLKATA-17
3:MR SOMNATH CHATTERJEE
S/O SHRI TARINI CHATTERJEE
R/O GC-77
SALT LAKE
SECTOR-III
KOLKATA-06
WEST BENGA
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For the Applicant(s) : Mr. D. Mazumder, Sr. Advocate
: Mr. P. Borah, Advocate
For the Respondent(s) : Mr. R. Banerjee, Sr. Advocate
: Mr. D. Sharma, Sr. Advocate
: Mr. R. Chakraborty, Advocate
: Mr. A. Basu, Advocate
: Mr. A. K. Sahewalla, Advocate
Date of Hearing : 06.05.2025
Date of Judgment : 13.06.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (CAV)
Heard Mr. D. Mozumder, the learned Senior counsel assisted by Mr. P.
Borah, the learned counsel appearing on behalf of the applicant. Also heard
Mr. R. Banererjee and Mr. D. Sharma, both Senior counsels assisted by Mr. R.
Chakraborty, Mr. A. Basu, the learned counsels as well as Mr. A. K. Sahewala,
the learned counsels appearing on behalf of the opposite parties.
2. This is an application filed under Section 151 of the Code of Civil
Procedure, 1908 (for short 'the Code) for recalling of the common judgment
and order dated 13.11.2014 passed by this Court in CRP No.47/2014 and
CRP No.97/2014.
FACTS LEADING TO THE INSTANT APPLICATION:
3. One Mr. Hemendra Prasad Barooah (since deceased) had filed a suit
being Title Suit No.41/2012 before the learned Court of the Civil Judge,
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Jorhat (hereinafter referred to as ‘the learned Trial Court’) against the
applicant as well as the opposite party Nos. 1 and 2 seeking a decree that
the plaintiff (Late Hemendra Prasad Barooah) was the sole and absolute
owner of 8,61,918 equity shares of the opposite party No.1 company which
is lying in the Demat Account bearing No. DP ID IN 301151 and Client ID
26424547 which were in the name of the plaintiff and the applicant herein
maintained by the opposite party No.2. Along with the said suit, Late
Hemendra Prasad Barooah also filed an application under Order XXXIX Rule
1 and 2 of the Code praying for an ad-interim injunction restraining the
applicant herein, her servants, workmen, employees and agents from
causing any transfer in whatever nature with respect to 8,61,918 shares of B
& A Limited lying in the Demat Account bearing No. DP ID IN 301151 and
Client ID 26424547 and further restraining the applicant herein from using
the delivery slips lying with the applicant bearing No.AA44026920 to 929 and
further restraining/directing the opposite party No.2, namely HDFC Bank
Limited not to transfer the 8,61,918 shares of B & A Limited lying in the
Demat Account bearing No. DP ID IN 301151 and Client ID 26424547. The
said injunction application was registered and numbered as Misc. (J) Case
No.27/2012. It is relevant to take note of that the said suit as well as the
injunction application were filed on 13.08.2012.
4. On the date of filing of the said suit and the injunction application, the
learned Trial Court passed an ex-parte ad-interim injunction thereby directing
the parties to maintain status quo over the subject matter of the suit, i.e. the
equity shares lying with the opposite party No.2 herein in Demat Account
bearing No. DP ID IN 301151 and Client ID 26424547 till hearing of the
injunction petition. Further to that, the learned Trial Court issued notice upon
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the applicant and the other opposite parties in the said injunction application
to show cause as to why the ad-interim injunction shall not be granted as
prayed for and in the meantime, the parties were directed to maintain status
quo over the subject matter of the suit till disposal of the injunction petition.
5. The record reveals that the applicant filed her written objection to the
injunction application as well as also filed the written statement in the suit
on 03.06.2013.
6. The plaintiff i.e. Late Hemendra Prasad Barooah expired on 31.07.2013
before the injunction application could be taken up for disposal.
7. The opposite party No.3 herein on 08.08.2013 filed an application
before the learned Trial Court bringing to the notice of the learned Trial
Court that the plaintiff had expired on 31.07.2013 leaving behind him, his
Last Will and Testament dated 19.09.2012 and Codicils dated 20.11.2012
and 13.02.2013. It was further stated in the said application filed by the
opposite party No.3 that in terms of the said Will 8,61,918 equity shares of
the defendant No.1 in the suit owned by the deceased plaintiff was
bequeathed to a trust by the name of HEMEN BAROOAH BENAVOLENT AND
FAMILY TRUST absolutely and forever and the opposite party No.3 was one
of the trustees of the said trust. It was also mentioned that the opposite
party No.3 is the sole executor of the said last Will and Testament dated
19.09.2012 of the deceased plaintiff and the Codicils dated 20.11.2012 and
13.02.2013 and as such the opposite party No.3 is entitled to and is
representing the estate of the deceased plaintiff. It was also mentioned that
opposite party No.3 was taking steps to apply for obtaining Probate of the
Last Will and Testament. The opposite party No.3, therefore, sought
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substitution of his name in place of the deceased plaintiff. The said
application was registered and numbered as Petition No.3526/2013.
8. The applicant herein filed written objections to the said application filed
by the opposite party No.3. In the said objection, the applicant denied that
the deceased plaintiff had executed any Will or Testament dated 19.09.2012
or Codicils dated 20.11.2012 and 13.02.2013. It was further stated in the
said objection that the application so filed by the opposite party No.3 is
therefore required to be dismissed.
9. The opposite party No.3 filed a reply to the written objection.
10. The learned Trial Court passed the order on 23.12.2013 wherein it was
held that the opposite party No.3 cannot, at that stage, be impleaded as
plaintiff in place of the deceased plaintiff in his capacity as the executor of
the Will of the deceased plaintiff as the Will was not probated. The learned
Trial Court further observed that instead of dismissing the petition filed by
the opposite party No.3 and to do complete justice between the parties, the
application filed by the opposite party No.3 was kept in abeyance. The suit
was also kept in abeyance with an observation that the application so filed
by the opposite party No.3 herein shall be heard only on the opposite party
No.3 obtaining and producing the probate of the Will.
11. Interestingly, both the applicant as well as the opposite party No.3
assailed the order 23.12.2013 passed in petition No.3526/2013 before this
Court. The opposite party No.3 challenged the order dated 23.12.2013 in
Civil Revision Petition No.47/2014 on the ground that opposite party No.3
ought to have been substituted against the deceased plaintiff. The applicant
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herein also filed a petition being Civil Revision petition No.97/2014
challenging the order dated 23.12.2013 on the ground that the application
so filed by the opposite party No.3 ought to have been dismissed. This Court
vide a common judgment and order dated 13.11.2014 dismissed both the
revision petitions thereby affirming the order dated 23.12.2013.
12. At this stage, this Court finds it relevant to take note of that the
learned Coordinate Bench of this Court while dismissing both the petitions
observed that the judgments passed by the Supreme Court in the case of
Binapani Kar Chowdhury Vs. Sri Satyabrata Basu and Another reported in
(2006) 10 SCC 442 ; FGP Limited Vs. Saleh Hooseini Doctor and Another
reported in (2009) 10 (SCC) 223 as well as Commissioner, Jalandhar Division
and Others Vs. Mohan Krishan Abrol and Another reported in (2004) 7 SCC 505
were rendered by Two Judges’ Bench and the respective Two Judges’ Bench
of the Supreme Court did not consider the Three Judges’ Bench judgment of
the Supreme Court in the case of Mrs. Hem Nolini Judah Vs. Mrs. Isolyne
Sarojbashini Bose and Others reported in AIR 1962 SC 1471 and accordingly
upheld the order dated 23.12.2013 passed by the learned Trial Court.
13. It is relevant to take note of that there was no challenge to the said
common judgment and order dated 13.11.2014 passed in Civil Revision
Petition No.47/2014 and Civil Revision Petition No.97/2014 by both the
applicant as well as the opposite party No.3. It is also relevant to take
note of that in the meanwhile, the opposite party No.3 had filed an
application seeking grant of probate before the learned High Court of
Calcutta which was initially registered as PLA No.316/2013 and subsequently
upon being contested was re-numbered as Title Suit No.27/2016. On the
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date, the instant application was filed i.e. on 27.08.2024, the said Title Suit
No.27/2016 was at the stage of discovery of documents and consideration of
the interlocutory applications.
14. The effect of keeping in abeyance the suit vide the order dated
23.12.2013 by the learned Trial Court which was not interfered with by the
learned Coordinate Bench of this Court vide the common judgment and
order dated 13.11.2014 is that the suit being Title Suit No.41/2012 had not
proceeded since 2013. The injunction order which was passed on
13.08.2012 still continues to hold the field in spite of there being no
adjudication in respect thereto.
PRESENT APPLICATION:
15. The present application alleging that permitting an ex-parte injunction
order to continue that too, without any adjudication on merits inter partes
have deprived the applicant to get legitimate benefits by virtue of being the
joint shareholders including voting rights as well as the right of participation
on the affairs of the company as being a member and also depriving her
from enjoying the dividends from the said shares. Taking into account that
even after a period of almost 11 years, nothing substantial have progressed
in the probate proceedings pending before the learned High Court of
Calcutta, the applicant filed an application under Order XXXIX Rule 4 of the
Code for setting aside the ex-parte ad-interim injunction order dated
13.08.2012 which was registered and numbered as Misc. (J) Case No.
21/2020. The opposite party No.3 herein filed written objection by raising a
contention that the order dated 23.12.2013, keeping the suit and the
substitution petition in abeyance, had attained finality and the applicant by
Page No.# 8/32way of the application under Order XXXIX Rule 4 of the Code cannot invite
the Court to sit on appeal after the said order was upheld by this Court. The
said application so filed being Misc. (J) Case No.21/2020 was kept in
abeyance till disposal of the probate suit pending before the learned High
Court of Calcutta vide an order dated 03.08.2023. Being aggrieved, the
applicant had filed an appeal before this Court which has been registered
and numbered as FAO No.12/2024 and the said appeal is presently pending.
16. It is under such circumstances, the instant application was filed
seeking recall of the common judgment and order dated 13.11.2014 passed
in CRP No.47/2014 and CRP No.97/2014 on the ground that a mistake had
been committed by this Court while affirming the order passed by the
learned Trial Court dated 23.12.2013 in Petition No.3526/2013 arising out of
Title Suit No.41/2012.
AFFIDAVIT-IN-OPPOSITION FILED TO THE PRESENT APPLICATION:
17. It is seen that the instant application was filed on 27.08.2024 and the
opposite party No.3 had appeared and filed an affidavit-in-opposition. In the
affidavit-in-opposition so filed, the opposite party No.3 has stated that the
application so filed by the applicant is totally misconceived and no order can
be passed as prayed for as there are no cogent grounds that has been made
out by the applicant for inviting this Court to interfere with the order dated
13.11.2014. The opposite party No.3 averred that an application was filed by
the applicant under Section 151 of the Code before the learned Trial Court
praying for passing an order of dismissal of the suit on the ground of
abatement. The said application was registered at Misc. (J) Case
No.22/2020. The learned Trial Court issued notice in the said application vide
Page No.# 9/32an order dated 07.03.2020. Being aggrieved, the applicant approached this
Court by filing an application by invoking the supervisory jurisdiction of this
Court under Article 227 of the Constitution which was registered and
numbered as CRP No.72/2020. The said proceedings being CRP No.72/2020
was dismissed with an observation that the Misc. (J) Case No.22/2020, filed
by the applicant before the learned Trial Court, was a misleading one on the
ground that this Court in its order dated 13.11.2014 observed that till the
probate is granted, Title Suit No.41/2012 should be kept in abeyance and
such filing of an application before the learned Trial Court seeking an order
that Title Suit No.41/2012 stood abated was contrary to the spirit of the
order passed in CRP No.47/2014 and CRP No.97/2014. It was further
averred that this Court in its judgment dated 26.07.2021 held that the
learned Trial Court did not commit any error while issuing of notice to the
other side. The opposite party No.3 further referred to the fact that against
the order passed in CRP No.72/2020, the applicant had approached the
Supreme Court but the SLP was dismissed.
SUBMISSIONS MADE ON BEHALF OF THE PARTIES:
18. Mr. D. Mozumdar, the Senior counsel appearing on behalf of the
applicant submitted that the present application is filed under Section 151 of
the Code seeking recalling of the common judgment and order dated
13.11.2014 passed in CRP No. 47/2014 and CRP No.97/2014 on the ground
that this Court had committed a mistake in applying the settled law and
thereby had caused prejudice to the parties. He submitted that the power to
recall the judgment is inherent in the Court under Section 151 of the Code
and this power of recall can be exercised when any procedural error is
Page No.# 10/32committed while delivering the earlier judgment. The learned counsel
therefore submitted that as this Court is invested with the inherent powers
as may be necessary to discharge its functions effectively for the purpose of
doing justice between the parties and in absence of any statutory
prohibition, this Court can exercise its power to recall. He therefore,
submitted that this is a fit case as would be seen from the manner in which
the learned Trial Court had passed the order dated 23.12.2013 which was
affirmed by this Court resulting in great prejudice to the applicant. The
learned Senior counsel therefore submitted that in order to prevent the
abuse of the process, this Court ought to exercise its powers under Section
151 of the Code.
19. The learned Senior counsel for the applicant admitted that there was
also a mistake being committed by the earlier counsels representing the
applicant in opposing the prayer of the opposite party No.3 to be substituted
against the deceased plaintiff. The resultant effect was the order dated
23.12.2013 whereby the learned Trial Court had stayed the suit pending
disposal of the probate proceedings and this order dated 23.12.2013 was
affirmed by this Court. He submitted that he is surprised that the opposite
party No.3 is opposing this application filed under Section 151 of the Code
for recalling judgment and order dated 13.11.2014 inasmuch as what the
opposite party No.3 wished by filing that application bearing Petition
No.3526 dated 12.08.2013 is being now conceded to by the applicant. The
learned Senior counsel therefore submitted that by recalling the judgment
and order dated 13.11.2014, this Court may allow the application being CRP
No.47/2014 filed by the opposite party No.3 and dismiss the application
being CRP No.97/2014 filed by the applicant.
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20. Referring to the mistakes so committed by both the learned Trial Court
as well as by this Court, the learned Senior counsel submitted that a perusal
of Section 211 of the Indian Succession Act, 1925 (for short ‘Act of 1925’)
read with section 2(11) of the Code would show that by operation of law,
the executor or administrator, as the case may be, of a deceased person, is
the legal representative for all purposes and as such, the opposite party No.3
ought to have been substituted. Section 213 of the Act of 1925 has no
relation whatsoever in respect to the substitution of the legal representative
in a suit or proceedings and this was categorically held by the Supreme
Court in the case of Binapani Kar Chowdhury (supra) and FGP Limited
(supra). He further submitted that the judgment in the case of Mrs. Hem
Nolini Judah (supra) had no application in respect to the question as to
whether an executor of the Will can be a legal representative within the
meaning of Section 2(11) of the Code to be substituted under Order XXII
Rule 3 of the Code. The learned Senior counsel submitted that both the
learned Trial Court as well as this Court did not consider that Binapani Kar
Chowdhury (supra) had duly considered the case of Mrs. Hem Nolini Judah
(supra) and then also held that the executor or the legatee under the Will of
the Testator can come on record as a legal representatives of the deceased
plaintiff. He, therefore, submitted that it was not fair on the part of the
learned Trial Court as well as this Court after the judgments passed by the
Supreme Court in the case of Binapani Kar Chowdhury (supra) to say that the
judgment in the case of Binapani Kar Chowdhury (supra) and FGP Limited
(supra) were per incuriam and more so, in view of the judgment of the
Supreme Court in the case of South Central Railway Employees Cooperative
Credit Society Employees Union Vs. B. Yashodabai and Others reported in
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(2015) 2 SCC 727. The learned Senior counsel therefore submitted that this
Court in exercise of its inherent jurisdiction, ought to recall the judgment and
order dated 13.11.2014 and allow the petition No.3526 dated 12.08.2013
filed by the opposite party No.3 and permit the Title Suit No.41/2012 to
proceed in accordance with law.
21. Per contra, Mr. R. Banerjee, the learned Senior counsel submitted that
though the opposite party No.3 filed an application seeking substitution
against the deceased plaintiff, but in view of the judgment of the Supreme
Court in the case of Mrs. Hem Nolini Judah (supra) and Naraindas Lilaram
Adnani Vs. Narsingdas Naraindas Adnani and Others reported in 1995 Supp (1)
SCC 312, the law declared in the later judgments of the Supreme Court in
the case of Binapani Kar Chowdhury (supra) and FGP Limited (supra) cannot
be said to be good law more so, when the judgments in the case of Mrs.
Hem Nolini Judah (supra) and Naraindas Lilaram Adnani (supra) are
judgments of three Judges’ Bench. The learned Senior counsel further
submitted that even if it is held that the judgments in the case of Binapani
Kar Chowdhury (supra) and FGP Limited (supra) are good law by way of an
application under Section 151 of the Code, the judgment and order dated
13.11.2014 passed by the learned Coordinate Bench cannot be recalled. He
further submitted that another Coordinate Bench vide a judgment dated
26.07.2021 in CRP No.72/2020 had also accepted the findings passed in the
judgment and order dated 13.11.2014 and as such, it would not be proper
on the part of this Court to exercise the inherent powers under Section 151
of the Code to recall the judgment and order dated 13.11.2014.
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COURT’S QUERY:
22. This Court during the course of the hearing raised a specific query
upon the learned counsel who appeared on behalf of the Opposite Party
No.3 as to whether he had any objection in allowing the substitution
application thereby substituting the opposite party No.3 against the
deceased plaintiff which was the opposite party No.3’s prayer in the Petition
No.3526/2013 as well as CRP No.47/2014. The learned Senior counsel
appearing on behalf of the opposite party No.3 did not provide any straight
forward answer but rather stated that he wished that the probate
proceedings be disposed off by the learned High Court of Calcutta at an
early date.
POINTS FOR CONSIDERATION:
Whether the inherent powers of this Court can be exercised in the
present facts?
ANALYSIS AND DETERMINATION:
23. The deceased plaintiff prior to his demise had filed the suit on
13.08.2012 being Title Suit No.41/2012. Along with the said suit, an
injunction application was filed which was registered and numbered as Misc.
(J) Case No.27/2012. The learned Trial Court on the date of filing of the suit
passed an ex-parte ad-interim temporary injunction directing maintenance of
status quo over the subject matter of the suit, i.e. the equity shares lying
with the opposite party No.2 herein in Demat Account bearing No. DP ID IN
301151 and Client ID 26424547 till the disposal of the injunction petition.
Though written objections were filed against the said injunction application
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as well as the written statement filed in the suit, the suit as well as the
injunction proceedings have not progressed thereafter for almost 13 years
on account of the order dated 23.12.2013 passed by the learned Trial Court
which was affirmed by this Court vide the judgment and order dated
13.11.2014. Therefore, it is apparent that the applicant herein as well as the
opposite parties in the said injunction proceedings have suffered and
continue to suffer an ex-parte injunction order for the last 13 years without
any inter partes adjudication on account of an order passed by the learned
Trial Court which was affirmed by this Court.
24. At this stage, it is pertinent to observe that the order dated 23.12.2013
and the judgment and order dated 13.11.2014 whereby the suit and
injunction proceedings were kept in abeyance was not a relief sought for by
either of the parties to the suit before the learned Trial Court or before this
Court. It is also relevant to take note of that vide the order dated 23.12.2013
passed by the learned Trial Court as well as the judgment and order dated
13.11.2014 passed by this Court, no rights of either of the parties were
decided. Therefore, as no rights have been decided, the natural corollary is
that vide the order dated 23.12.2013 passed by the learned Trial Court and
the judgment and order dated 13.11.2014 passed by this Court, no right(s)
have accrued upon either of the parties.
25. This Court further finds it also relevant to take note of that the
judgment and order passed by this Court dated 13.11.2014 is not appealable
though there was an opportunity to file Special Leave Petition under Article
136 of the Constitution which neither of the parties did. It is further relevant
to take note of that the Supreme Court in the case of A. V. Papayya Sastry
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and Others Vs. Govt. of A.P. and Others reported in (2007) 4 SCC 221, opined
that Article 136 of the Constitution does not confer a right of appeal on any
party. It confers discretion on the Supreme Court to grant leave to appeal in
appropriate cases. In other words, the Constitution had not made the
Supreme Court a regular Court of appeal or a Court of error. In the case of
Baigana and Others Vs. Deputy Collector of Consolidation and Others reported
in (1978) 2 SCC 461, His Lordship V. R. Krishna Iyer, J. (as His Lordship then
was) in the context of Article 136 of the Constitution observed that the
Supreme Court exercises power only when there is a supreme need. His
Lordship opined that the Supreme Court is not the fifth Court of Appeal but
the final Court of the Nation. The words used by His Lordships were “Even if
legal flaws may be electronically detected, we cannot interfere sans manifest
injustice or substantial questions of public importance”.
26. Therefore, from the above, Article 136 of the Constitution cannot be
said to be an alternative remedy which would bar this Court to exercise the
powers under Section 151 of the Code. In this regard, this Court takes note
of the judgment of the Supreme Court in the case of My Palace Mutually
Aided Co-operative Society Vs. B. Mahesh and Others reported in (2022) 19
SCC 806 wherein the Supreme Court observed that inherent powers can be
invoked only in circumstances where alternative remedies do not exist.
27. In a recent judgment of the Supreme Court in the case of HDFC Bank
Limited and Others Vs. Union of India and Others reported in (2023) 5 SCC
627, the Supreme Court observed that the concern of the Court for
rendering justice in a cause is not less important than the principle of finality
of the judgment. It was further observed that though situations may arise in
Page No.# 16/32
rarest of rare cases which would require reconsideration of a final judgment
to set right miscarriage of justice complained of and it would not only be
proper but also obligatory, both legally and morally, to rectify the error. It
was also observed by the Supreme Court in the said judgment that to
prevent abuse of its process and to cure a gross miscarriage of justice, the
Court may reconsider its judgments in exercise of its inherent powers.
Paragraph Nos. 30 to 34 of the said judgment being relevant are reproduced
herein below.
“30. This Court in the aforesaid case held that the concern of this Court for rendering
justice in a cause is not less important than the principle of finality of its judgment.
The Court has to balance ensuring certainty and finality of a judgment of the Court of
last resort on one hand and dispensing justice on reconsideration of a judgment on
the valid grounds on the other hand. This Court has observed that though the Judges
of the highest court do their best, yet situations may arise, in the rarest of the rare
cases, which would require reconsideration of a final judgment to set right
miscarriage of justice complained of. It has been held that in such a case it would not
only be proper but also obligatory both legally and morally to rectify the error. This
Court further held that to prevent abuse of its process and to cure a gross miscarriage
of justice, the Court may reconsider its judgments in exercise of its inherent power.
31. This Court in A.R. Antulay, speaking through Sabyasachi Mukharji, J. observed
thus : (SCC p. 672, paras 82-83)“82. Lord Cairns in Rodger v. Comptoir D’Escompte de Paris, PC at p. 475 observed
thus : (ER p. 125)‘Now, their Lordships are of opinion, that one of the first and highest duties
of all courts is to take care that the act of the court does no injury to any of
the suitors, and when the expression “the act of the court” is used, it does
not mean merely the act of the primary court, or of any intermediate court
Page No.# 17/32of appeal, but the act of the court as a whole, from the lowest court which
entertains jurisdiction over the matter up to the highest court which finally
disposes of the case. It is the duty of the aggregate of those Tribunals, if I
may use the expression, to take care that no act of the court in the course
of the whole of the proceedings does an injury to the suitors in the court.’
83. This passage was quoted in the Gujarat High Court by D.A. Desai, J., speaking
for the Gujarat High Court in Soni Vrajlal Jethalal v. Soni Jadavji Govindji as
mentioned before. It appears that in giving directions on 16-2-1984, this Court
acted per incuriam inasmuch it did not bear in mind consciously the consequences
and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of
the larger Bench decision in Anwar Ali Sarkar case which was not adverted to by
this Court. The basic fundamentals of the administration of justice are simple. No
man should suffer because of the mistake of the court. No man should suffer a
wrong by technical procedure of irregularities. Rules or procedures are the
handmaids of justice and not the mistress of the justice. Ex debito justitiae, we
must do justice to him. If a man has been wronged so long as it lies within the
human machinery of administration of justice that wrong must be remedied. This
is a peculiar fact of this case which requires emphasis.”
32. It could thus be seen that the principle of ex debito justitiae has been
emphasised. This Court in A.R. Antulay held that no man should suffer because of
the mistake of the court. No man should suffer a wrong by technical procedure of
irregularities. It has been held that the rules of procedure are the handmaidens of
justice and not the mistress of justice. It has further been held that if a man has
been wronged, so long as the wrong lies within the human machinery of
administration of justice, that wrong must be remedied.
33. Ranganath Misra, J., in his concurring opinion, observed thus : (A.R. Antulay case,
SCC pp. 687-88, paras 102-04)
“102. This being the Apex Court, no litigant has any opportunity of approaching
Page No.# 18/32
any higher forum to question its decisions. Lord Buckmaster in Montreal Street
Railway Co. v. Normandin (sic) stated:
All rules of court are nothing but provisions intended to secure proper
administration of justice. It is, therefore, essential that they should be made to
serve and be subordinate to that purpose.
This Court in State of Gujarat v. Ramprakash P. Puri reiterated the position by
saying : (SCC p. 159, para 5)‘5. … Procedure has been described to be a handmaid and not a mistress of law,
intended to subserve and facilitate the cause of justice and not to govern or
obstruct it. Like all rules of procedure, this rule demands a construction which
would promote this cause.’Once judicial satisfaction is reached that the direction was not open to be made
and it is accepted as a mistake of the court, it is not only appropriate but also the
duty of the court to rectify the mistake by exercising inherent powers. Judicial
opinion heavily leans in favour of this view that a mistake of the court can be
corrected by the court itself without any fetters. This is on the principle as
indicated in (Alexander) Rodger case. I am of the view that in the present
situation, the court’s inherent powers can be exercised to remedy the mistake.
Mahajan, J. speaking for a four-Judge Bench in Keshardeo Chamria v. Radha
Kissen Chamria at SCR p. 153 stated : (SCC p. 341, para 27)’27. … The Judge had jurisdiction to correct his own error without entering into a
discussion of the grounds taken by the decree-holder or the objections raised by
the judgment-debtors.’
103. The Privy Council in Debi Bakhsh Singh v. Habib Shah pointed out that an
abuse of the process of the court may be committed by the court or by a party.
Where a court employed a procedure in doing something which it never intended
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to do and there is an abuse of the process of the court it can be corrected. Lord
Shaw spoke for the Law Lords thus : (SCC OnLine PC)
‘ … Quite apart from Section 151, any court might have rightly considered itself to
possess an inherent power to rectify the mistake which had been inadvertently
made.’
It was pointed out by the Privy Council in Bolivar, In re that : (SCC OnLine PC para
1)
‘1. Where substantial injustice would otherwise result, the court has, in their
Lordships’ opinion, an inherent power to set aside its own judgments of
condemnation so as to let in bona fide claims by parties….’
Indian authorities are in abundance to support the view that injustice done should
be corrected by applying the principle actus curiae neminem gravabit — an act of
the court should prejudice no one.
104. To err is human, is the oft-quoted saying. Courts including the apex one are
no exception. To own up the mistake when judicial satisfaction is reached does not
militate against its status or authority. Perhaps it would enhance both.”
34. It has been held in A.R. Antulay that this being the Apex Court, no litigant has any
opportunity of approaching any higher forum to question its decisions. It has further
been held that once a judicial satisfaction is reached that the direction was not open to
be made and it is accepted as a mistake of the court, it is not only appropriate but also
the duty of the court to rectify the mistake by exercising its inherent powers. It has
been held that, to err is human, and the courts including the Apex Court are no
exception.”
28. Therefore, from the above proposition of law as settled by the
Supreme Court in HDFC Bank Limited (supra), it is clear that once a judicial
Page No.# 20/32
satisfaction is reached that the direction was not open to be made and it is
accepted as a mistake of the Court, it is not only appropriate but also the
duty of the Court to rectify the mistake by exercising its inherent powers.
29. In the backdrop of the above, the question therefore arises is as to
whether there was a mistake committed by the learned Trial Court in its
order dated 23.12.2013 and by this Court in its judgment and order dated
13.11.2014 thereby causing prejudice to the parties to the proceedings. The
issue before the learned Trial Court was as to whether an executor of the
Will would be a legal representative who could have been substituted against
the deceased plaintiff. As noted above already, the opposite party No.3
sought for substitution whereas the applicant sought for rejection of the said
application. The learned Trial Court ought to have either allowed the
application or dismissed the application. But however, the learned Trial Court
passed an order to keep the judicial proceedings of Title Suit No.41/2012 in
abeyance till the disposal of the probate proceedings.
30. It is seen that the learned Trial Court held that the judgment in the
case of Binapani Kar Chowdhury (supra) and FGP Limited (supra) could not
be relied upon on the ground that a three Judges’ Bench of the Supreme
Court in Naraindas Lilaram Adnani (supra) observed that in view of Section
213 of the Act of 1925, without the Will being probated, the concerned
respondent No.9 who was the sole executor of the Will could not be
impleaded in his capacity as the executor of the Will of the deceased
appellant, though the respondent No.9 therein was transposed as the
appellant as he was the legal representative.
31. With due respect, the Supreme Court in the judgment rendered in the
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case of Naraindas Lilaram Adnani (supra) was dealing with the issue as
regards the scope of Section 15(1)(b) and 16 of the Arbitration Act, 1940.
No occasion arose before the Supreme Court in the said judgment to refer to
Section 211 of the Act of 1925 as well as Section 2(11) of the Code on
account of the fact that the respondent No.9 therein was transpositioned as
appellant as he was the legal representative also. It is however relevant to
observe that the Supreme Court did not stay the proceedings but proceeded
with by transpositioning the respondent No.9 as the appellant.
32. Be that as it may, in the case of Binapani Kar Chowdhury (supra), the
Supreme Court was called upon to answer a specific question as to whether
the executor and the legatee under the Will can claim substitution as a legal
representative of the deceased plaintiff. The Supreme Court while dealing
with Section 213 of the Act of 1925 opined that where the testator had
himself filed the suit seeking a declaration and consequential relief and he
dies during the pendency of the suit, the executor or the legatee under his
Will can come on record as a legal representative of the deceased plaintiff
under Order XXII Rule 3 of the Code and prosecute the suit. Paragraph Nos.
4 and 5 of the said judgment are reproduced herein under.
“4. Section 213 of the Succession Act (“the Act” for short) provides as to when
the right of the executor or legatee is established. Sub-section (1) thereof
provides that no right as executor or legatee can be established in any court
unless a court of competent jurisdiction in India has granted probate of the Will
under which the right is claimed (or has granted letters of administration with the
Will or with a copy of the Will annexed). It is not in dispute that the said section
applies in the case of Wills made by a Hindu who is a resident of Calcutta. The
trial court and the High Court have proceeded on the basis that having regard to
Page No.# 22/32Section 213 of the Act, the suit cannot be decided unless the executor of the Will
produces the probate. Section 213 clearly creates a bar to the establishment of
any right under a Will by the executor or legatee unless probate or letters of
administration of the Will have been obtained. This Court in Hem Nolini Judah v.
Isolyne Sarojbashini Bose1 held as follows: (SCR p. 303)“The words of Section 213 are not restricted only to those cases where
the claim is made by a person directly claiming as legatee. The section
does not say that no person can claim as a legatee or as an executor
unless he obtains probate or letters of administration of the Will under
which he claims. What it says is that no right as an executor or legatee
can be established in any court of justice, unless probate or letters of
administration have been obtained of the Will under which the right is
claimed, and therefore it is immaterial who wishes to establish the right
as a legatee or an executor. Whosoever wishes to establish that right,
whether it be a legatee or an executor himself or somebody else who
might find it necessary in order to establish his right to establish the right
of some legatee or executor from whom he might have derived title, he
cannot do so unless the Will under which the right as a legatee or
executor is claimed has resulted in the grant of a probate or letters of
administration.”
5. Therefore, where the right of either an executor or a legatee under a Will is
in issue, such right can be established only where probate (where an executor
has been appointed under the Will), or letters of administration (where no
executor is appointed under a Will), have been granted by a competent court.
Section 213 does not come in the way of a suit or action being instituted or
presented by the executor or the legatee claiming under a Will. Section 213,
however, bars a decree or final order being made in such suit or action which
involves a claim as an executor or a legatee, in the absence of a probate or
letters of administration in regard to such a Will. Where the testator had himself
Page No.# 23/32
filed a suit (seeking a declaration and consequential reliefs), and he dies during
the pendency of the suit, the executor or legatee under his Will, can come on
record as the legal representative of the deceased plaintiff under Order 22 Rule 3
CPC and prosecute the suit. Section 213 does not come in the way of an executor
or legatee being so substituted in place of the deceased plaintiff, even though at
the stage of such substitution, probate or letters of administration have not been
granted by a competent court.”
33. It is very relevant to take into account that the Supreme Court in the
case of Binapani Kar Chowdhury (supra) had also dealt with the judgment of
the three Judges’ Bench of the Supreme Court in the case of Mrs. Hem Nolini
Judah (supra) and then also observed that Section 213 of the Act of 1925
shall not bar substitution of the Testator who was the plaintiff, by his
executor. The learned Coordinate Bench, with due respect, did not notice
this aspect and passed the judgment and order dated 13.11.2014 holding
that the judgment delivered in Binapani Kar Chowdhury (supra) was not
binding in view of the judgment of the three Judges’ Bench of the Supreme
Court in Mrs. Hem Nolini Judah (supra). This appears to be an incorrect
approach taken by the learned Coordinate Bench of this Court more so when
it is trite principle of law that it is not open to the High Court to hold that the
judgment delivered by the Supreme Court was per incuriam. (See South
Central Railway Employees Cooperative Credit Society Employees Union
(supra) paragraph Nos. 12 to 14).
34. The judgment in the case of FGP Limited (supra) dealt with the scope
of Section 211 vis-à-vis Section 213 of the Act of 1925 read with Section
2(11) of the Code. The question before the Supreme Court was whether in
absence of any probate having been obtained, the executor of the Will could
Page No.# 24/32
file a suit for possession of the premises originally owned by the testatrix.
Paragraph Nos. 46 to 53 being relevant are quoted herein under:
“46. In this connection, we must see the distinction between Sections 211
and 213 of the Succession Act. Under Section 211 of the said Act, the executor or
administrator, as the case may be, of a deceased person is his legal
representative for all purposes, and all the property of the deceased person vests
in him as such. Here the legal representatives will have the same meaning as has
been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the
Code of Civil Procedure provides as under:
“2. (11) ‘legal representative’ means a person who in law represents the
estate of a deceased person, and includes any person who intermeddles
with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on the
death of the party so suing or sued;”
47. Therefore, it is Section 211 and not Section 213 that deals with the
vesting of property. This vesting does not take place as a result of probate. On
the executor’s accepting his office, the property vests on him and the executor
derives his title from the will and becomes the representative of the deceased
even without obtaining probate. The grant of probate does not give title to the
executor. It just makes his title certain.
48. Under Section 213, the grant of probate is not a condition precedent to
the filing of a suit in order to claim a right as an executor under the will. This
vesting of right is enough for the executor or administrator to represent the
estate in a legal proceeding.
49. It has been held in Kulwanta Bewa v. Karam Chand Soni (AIR 1938 Cal
714) that the whole scheme of the Act is to provide for the representation of the
deceased’s estate for the purpose of administration. That vesting is not only for
Page No.# 25/32
the beneficial interest in the property but is also for the purposes of
representation.
50. Similarly, it has been held in S.M.K.R. Meyappa Chetty v. S.N.
Supramanian Chetty [(1915-1916) 43 1A 113] that an executor derives his title
from the will and not from the probate and the right of action in respect of
personal property of the testator vests in the executor on the death of the
testator.
51. But Section 213 operates in a different field. Section 213 enjoins that
rights under the will by an executor or a legatee cannot be established unless
probate or letters of administration are obtained. Therefore, Section 211 and
Section 213 of the said Act have different areas of operation.
52. Even if the will is not probated that does not prevent the vesting of the
property of the deceased on the executor/administrator and consequently any
right of action to represent the estate of the executor can be initiated even
before the grant of the probate.
53. Similar opinion has been expressed by this Court in Commr. v. Mohan
Krishan Abrol [(2004) 7 SCC 505] (See para 10 at p. 513). So the suit filed by the
respondents as executors is also maintainable.”
(The citations of the judgments have been inserted
to the quoted portion by this Court for convenience)
35. From the above, it is therefore clear that the executor of the Will
would be a legal representative within the meaning of Section 2(11) of the
Code and as such, can not only seek substitution but also file a suit pending
a probate proceedings.
36. This Court further takes note of that a very perusal of Section 2(11) of
Page No.# 26/32
the Code also makes it clear that who would be a legal representative. It
means a person who in law represents the estate of the deceased and
includes any person who intermeddles with the estate of the deceased and
where a party sues or is sued in the representative character that the person
on whom the estate devolves on the death of the party so suing or sued.
The judgments of the Supreme Court in the cases of Binapani Kar
Chowdhury (supra) and FGP Limited (supra) were clearly dealing with the
question as to whether proceedings could have been continued through the
executor of the Will or a proceedings can be filed by the executor of the Will
pending probate and both these decisions categorically held that the
executor of the Will would be the legal representatives on a reading of
Section 211 of the Act of 1925 read with Section 2(11) of the Code. This
Court further finds that Section 211(1) of the Act of 1925 statutorily
recognizes an executor of the Will as a legal representative which is of vital
importance as would be seen from the very judgment of the Supreme Court
in the case of FGP Limited (supra).
37. This Court further takes note of that the learned Coordinate Bench of
this Court, while passing the judgment and order dated 13.11.2014, merely
referred to the judgment of the three Judges’ Bench in the case of Mrs. Hem
Nolini Judah (supra). With greatest of respect, the learned Coordinate Bench
of this Court did not take into account as to whether the Supreme Court in
the case of Mrs. Hem Nolini Judah (supra) was at all dealing with the
question as to whether the executor of the Will can be a legal representative
or not which was the question before the learned Coordinate Bench. It is
relevant at this stage to take into account the judgment of the Supreme
Court in the case of Mrs. Hem Nolini Judah (supra) and the issue involved
Page No.# 27/32
therein before the Supreme Court. The facts involved in the case of Mrs.
Hem Nolini Judah (supra) was that Dr. Miss Mitter had made a Will in favour
of Mrs. Momin in April, 1921, by which she gave the whole house to her.
Mrs. Momin, in turn, made a gift of the house to the plaintiff who thus
became the owner of the house. Further to that, Dr. Miss Mitter had also
executed the Will in June, 1925 bequeathing the house to her mother Mrs.
Mitter and subsequently the mother made a Will in favour of the appellant
i.e. Hem Nolini Judah in April, 1930. The Wills so made by Dr. Miss Mitter in
April, 1921 and June, 1925 were not probated. The facts therein further
show that Letter of Administration was obtained by the appellant in respect
to the Will made by Mrs. Mitter. The question involved before the Supreme
Court was whether the property could have vested upon Mrs. Mitter and
thereupon could it be bequeathed in favour of the appellant when Dr. Miss
Mitter’s Will was not probated. It is under such circumstances, the Supreme
Court had stated that Section 213 would bar the appellant from establishing
the right of her mother as a legatee from Dr. Miss Mitter as no probate or
Letter of Administration had been obtained of the alleged Will of Dr. Miss
Mitter in favour of Mrs. Mitter.
38. The facts and the issue involved therein had no relevance to the issue
which was before the learned Coordinate Bench of this Court. With due
respect, this Court further finds it relevant also to observe that the learned
Coordinate Bench of this Court did not take into consideration the facts and
issue involved in Mrs. Hem Nolini Judah (supra) and held that the judgment in
the case of Mrs. Hem Nolini Judah (supra) was a binding law as on date and
thereby affirmed the order dated 23.12.2013 which had resulted in the suit
being stayed since 2013 and an ex-parte ad-interim injunction operating for
Page No.# 28/32
the last 13 years.
39. It is also significant to note that both the learned Trial Court in its
order dated 23.12.2013 and the learned Coordinate Bench in the judgment
and order dated 13.11.2024 took a decision which not only had prejudiced
the applicant herein but were also contrary to the established principles laid
down by the Supreme Court in the case of Sardar Amarjit Singh Kalra and
Others Vs. Pramod Gupta and Others reported in (2003) 3 SCC 272 wherein
the Constitution Bench of the Supreme Court observed in the context of
Order XXII of the Code that the laws of procedure are meant to regulate
effectively, assist and aid the object of doing substantial and real justice and
not to foreclose even an adjudication on merits of substantial rights of the
citizens under personal, property and other laws. It was observed that a
careful reading of the provisions contained in Order XXII of the Code as well
as the subsequent amendments thereto would lend credit and support to the
view that they are devised to ensure their continuation and culmination in an
effective adjudication and not to retard the further progress of the
proceedings and thereby non-suit the others similarly placed as long as their
distinct and independent rights to property or any claim remain intact and
not lost forever due to death of one or the other in the proceedings.
However, in the instant case, the judgment and order dated 13.11.2014
whereby the order dated 23.12.2013 passed by the learned Trial Court was
affirmed had resulted in stalling the progress of the suit. It is the opinion of
this Court that the Order XXII of the Code provides the means and method
as to how the suit has to progress upon the death of the plaintiff(s) as well
as the defendant(s). The concept of staying the proceedings of the suit
pending probate is foreign to Order XXII of the Code.
Page No.# 29/32
40. The analysis made above would clearly show that the order dated
23.12.2013 passed by the learned Trial Court in respect to the Petition
No.3526/2013 is contrary to the well settled principles of law. The learned
Coordinate Bench by its judgment and order dated 13.11.2014, with great
respect, committed a mistake thereby prejudicing the parties to the suit in
affirming the order dated 23.12.2013. The mistake so committed by the
learned Coordinate Bench as noted had severely prejudiced the parties to
the suit. The opposite Party No.3 though objects to the present application
on the ground that nothing can be done now after a lapse of 10 years from
the date of the judgment and order dated 13.11.2014 passed by the learned
Coordinate Bench of this Court but it is the opinion of this Court that if on
account of a mistake committed by this Court any of the parties have
suffered, it is obligatory on the part of this Court to acknowledge the mistake
and do the needful to rectify the mistake.
41. Before concluding, this Court finds it relevant to take note of the
submission made by the learned Senior counsel for the opposite party No.3.
The learned Senior counsel submitted that the law declared by the Supreme
Court in the case of Naraindas Lilaram Adnani (supra) and Mrs. Hem Nolini
Judah (supra) being judgments of Three Judges’ Bench were binding and the
judgments in the case of Binapani Kar Chowdhury (supra) and FGP Limited
(supra) could not be said to be good law. This Court in the previous
segments of the present judgment had duly dealt with the said judgments
rendered by the Three Judges’ Bench of the Supreme Court and opined that
the said judgments were not applicable to the present facts. Be that as it
may, if it is assumed that judgments in the case of Binapani Kar Chowdhury
(supra) and FGP Limited (supra) are not good law as submitted by the
Page No.# 30/32
learned Senior counsel for the opposite party No.3, the only logical
conclusion that can be reached is that the opposite party No.3 would have
no right to substitute and consequently the suit proceedings would stand
abated. It appears to this Court that the said submission made by the
learned Senior counsel for the opposite party No.3 not only goes counter to
the interest of the opposite party No.3 but also seems to be a desperate
attempt to keep the suit proceedings in abeyance indefinitely and in the
meantime, the ex-parte injunction order being continued.
42. This Court now finds it relevant to take note of the reference made to
the judgment dated 26.07.2021 passed in CRP No.72/2020 by the learned
Senior counsel for the opposite party No.3. It is relevant to take note of that
the judgment in the case of CRP No.72/2020 was rendered in the context of
whether the learned Trial Court was justified in issuance of notice when the
applicant herein had filed the application for dismissal of the suit on being
abated. The learned Coordinate Bench of this Court was not called upon in
the said proceedings to answer as to whether the judgment and order dated
13.11.2014 passed in CRP No.47/2014 and CRP No.97/2014 was requested
to be recalled. Therefore, the reference to the judgment dated 26.07.2021
passed in CRP No.72/2020 was completely misplaced.
CONCLUSIONS:
43. Accordingly, this Court disposes of the present application with the
following observations and directions:
(A) The common judgment and order dated 13.11.2014 passed in CRP
No.47/2014 and CRP No.97/2014 is recalled.
Page No.# 31/32
(B) This Court allows CRP No.47/2014 filed by the opposite party No.3 to
the extent mentioned hereinafter and dismisses CRP No.97/2014 filed by the
applicant.
(C) The consequential effect of allowing CRP No.47/2014 is that the
petition filed by the opposite party No.3 before the learned Trial Court being
Petition No.3526/2013 is allowed.
(D) The deceased plaintiff is accordingly substituted by the opposite party
No.3 herein in the suit as well as in the supplementary proceedings which
includes the injunction application being registered as Misc. (J) Case
No.27/2012.
(E) The learned Trial Court is directed to accordingly make necessary
corrections in the cause title of Title Suit No.41/2012 as well as Misc. (J)
Case No.27/2012.
(F) The Title Suit No.41/2012 as well as all supplementary proceedings are
revived and the learned Trial Court is directed to proceed with the disposal of
the suit and supplementary proceedings. It is however observed that if the
suit is decreed in favour of the plaintiff, the judgment and decree would
come into effect only when the opposite party No.3 obtains and produces
the probate of the Will before the learned Trial Court and till then the decree
so passed in favour of the plaintiff shall be considered as provisional and not
to be given effect. It is further observed that in the circumstance, the suit is
dismissed, the decree passed in the suit would be effective forthwith and
subject to being interfered with in accordance with law.
(G) The parties herein who are also parties before the learned Trial Court
Page No.# 32/32
are directed to appear before the learned Trial Court on 10.07.2025 for
further proceedings of the suit and the supplementary proceedings.
(H) There shall be no order of costs.
JUDGE
Comparing Assistant
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