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Judgment
Sahidullah Munshi, J
The Court: - On the last occasion it was observed that none of the appellants were present although they preferred the appeal and got the orders passed in the application filed by the defendants set aside. Today also none of the appellants are present before this Court. The matter was adjourned on the last occasion on the prayer of Mr. Mitra, Learned Senior Advocate, to submit whether this Court being a Probate Court can at all direct for issuing notice upon the three appellants before the Division Bench, on whose prayer my earlier orders dated 2nd August, 2019, 5th August, 2019 and 9th August, 2019 were set aside on different scores including the question of passing interim order in absence of the said three appellants. The Division Bench while setting aside the earlier interim orders passed by this Probate Court recorded the submission of the appellants, which they made before the Appellate Court, that the Court is bound to give reasons when it grants an ad interim order particularly when the same is an ex parte order (emphasis supplied). They further submitted that Birla Corporation, the appellant was not a party to the Testamentary Suit. The name of Birla Corporation also did not figure in the Masters' Summons being the application and the affidavit in support thereof affirmed on 31st July, 2019, as also in the supplementary affidavit filed in the said application. It was their contention that Birla Corporation was not before the Court or heard while passing the order dated 2nd August, 2019. The order dated 2nd August, 2019 was also passed in their absence. The Division Bench also recorded "Records reveal that none of the appellants are parties to the above testamentary suit. Therefore, the appellants prayed for leave to appeal as 'person aggrieved' to prefer their respective appeals as aforesaid. We being prima facie satisfied about the appellants' right to prefer their respective appeals granted each of them, leave to file their respective appeals. The said application filed in each of of the appeals were disposed of". Ultimately, the Division Bench held and concluded while disposing of the said appeals filed by the three companies viz. Birla Corporation Limited ( APO No. 9 of 2019), Birla Cables Limited ( APO No. 94 of 2019 ) and Vindhya Telelinks Limited ( APO No. 17 of 2019), that the orders impugned were not maintainable and accordingly those were set aside on the ground that the jurisdiction and/or authority of the Probate Court to pass orders against companies which are not parties to the testamentary suit, should have been decided first before passing any other order as it relates to inherent lack of jurisdiction and goes to the root of the matter. The Division Bench clearly held that the Court ought not to have passed orders ex parte against the appellants and found that the appeals were maintainable as a 'person aggriebved' cannot suffer an ex parte decree.
The Division Bench also concluded "So far the other issues are concerned, we are reminded of our jurisdiction while hearing an appeal arising out of an ex parte interim order or an ad interim order. We do not want to go into the other issues argued as that would amount to usurping the jurisdiction of the learned Single Judge. Moreover, when the affidavits have been concluded and the matter had been heard by the learned Single Judge to a great extent by the time the appeal had been preferred, we do not want to decide anything apart from the issue discussed as aforesaid. We make it clear that the learned Single Judge should hear the matter on all issues and that may be raised by giving opportunity to the appellants to place their respective cases as any order that may be passed will bind them. The learned Single Judge shall also be not influenced by any finding made hereinabove as the same is only for the purpose of deciding the appeals".
In the context of the aforesaid order passed by the Hon'ble Division Bench as also the order passed by the Hon'ble Apex Court on 11th May, 2020 to the extent, "since the learned Single Judge is seized of the applications for interim relief, we only clarify that the resolutions which have been passed by the respective companies shall abide by such final orders as may be passed by the learned Single Judge. The learned Single Judge shall decide upon the issue of jurisdiction, together with the applications for interim relief and rendering final determination thereof. The learned Single Judge shall endeavour to do so preferably within a period of one month of the receipt of the copy of this order".
From the orders passed by the Hon'ble Division Bench, which has merged with the orders passed by the Hon'ble Apex Court, it is now to decide whether any notice is at all required to be issued to the appellants or not.
Mr. Mitra, learned Senior Advocate appearing for the plaintiffs, always opposed the grant of interim relief to the defendants/petitioners and submitted at length before this Court that being a Probate Court it should not pass any interim order. The application being GA 1735 of 2019 and GA 1845 of 2019 filed by the defendants represented by Mr. Kapur, were being heard at length and their affidavits were also considered. When these applications were heard by this Court nobody apprised about the appeal being preferred by the companies although the same was known to them and the said appeal was being heard in their presence where they made their respective submissions. None of the parties appearing before me brought it to my notice that against the orders dated 2nd August, 2019, 5th August, 2019 and 9th August, 2019 passed by me these three appeals were being heard. Had it been brought to my notice I would not have proceeded with the hearing. Having not brought to the notice of the Court about pendency of the appeal being heard by the Division Bench, the parties grossly abused their own time and Court's time.
Be that as it may, Mr. Mitra, learned Senior Advocate now submits, that since this Court being a Probate Court has no jurisdiction to hear the application, question of issuance of notice to the appellant does not arise. He refers to a decision reported in AIR 1960 Supreme Court 941 (Satyadhyan Ghosal and Others, Appellants V. Smt. Deorajin Debi and Another) on the issue of resjudicata taking into consideration of an earlier decision passed by a Coordinate Bench arising out of the self-same suit. On the ratio of the decision he submits that even principle of resjudicata is applicable in two different stages of the same suit. The decision has no manner of application in the present case, inasmuch as three appellants were never parties before the Coordinate Bench.
Next he relies upon a decision of the Bombay High Court in AIR 2011, Bombay 136 (Ramchanda Ganpatrao Hande alias Handege V. Vithalrao Hande & Ors.) on the question of jurisdiction of Probate Court. He submits that Probate Court is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. This decision may have application at the time when the suit will be decided. But so far these applications are concerned, I am clearly bound by the direction of the Division Bench as also the Hon'ble Supreme Court. Since there is a clear direction by the Superior Courts that learned Single Judge should hear the matter and all issues that may be raised by giving opportunity to the appellants, I am inclined to give such opportunity to the appellants in the above three appeals, at whose instance the interim orders were interfered by the Hon'ble Division Bench. Mr. Mitra further submits that only a person can be added as a party or a notice of hearing can be issued if such person has got a caveatable interest. It may be so, that a party has no caveatable interest before the Probate Court but in view of the special circumstances that the persons who have been considered 'aggrieved' by the order impugned in the appeal and the Division Bench directs for giving opportunity of hearing to the appellants this court cannot agree with the submissions made by Mr. Mitra.
Mr. Sengupta, appearing for one of the co-respondents before the Division Bench (Aditya Lodha) made his submissions in the same line which Mr. Mitra agitated. Mr. Sengupta submits that the question of jurisdiction has to be gone into first and if a Court holds that it has got jurisdiction then only it will pass an order for issuance of notice. Mr. Sengupta, further adds that once the Court holds that it has got jurisdiction then only it will pass final order in terms of the order passed by the Hon'ble Supreme Court. In my view, that stage has not come whether any final order would be passed or not by this court on the application.
In view of the above discussion, I am of the view that it is very elementary that the appellants at whose instance some orders have been set aside by the Division Bench and the very applications have been directed to be decided by this Bench and particularly when the Division Bench observes that the appellants should be given opportunity of hearing, it is the minimum, a notice should be issued to those appellants.
Accordingly I direct, the advocate on record of Mr. Kapur's client to serve notice upon the three appellants forthwith and file affidavit of service on the next date.
Let these applications be made returnable on 12th June, 2020 at 11 AM.