Sheik Sahazad Ahmed vs Sajjad Hussain and Another

Prakash Tatia, J.—Heard learned Counsel for the petitioner.

The petitioner''s grievance is that in a petition for revocation of the succession certificate, an application was submitted by the petitioner-non-applicant in whose favour succession certificate was granted by the Court below under Order 7 Rule 11 CPC for rejection of the petition filed for revocation of the succession certificate. On that application instead of rejecting the applicant''s petition for revocation of the succession certificate, the trial Court ordered that one of the applicant on whose behalf no power has been filed be transposed as non-applicant and further directed the petitioner-non-applicant to produce the original Will which is in possession of the petitioner-non-applicant.

According to learned Counsel for the petitioner, the order is wholly without jurisdiction as has been passed without prayer of the even applicant and has been passed on application filed under Order 7 Rule 11 CPC filed by the petitioner-non-applicant.

Under Order 7 Rule 11 CPC order can be passed either for rejection of the application or for rejection of the plaint or the petition. But this order which has been passed by the Court below is not on application under Order 7 Rule 11 CPC though has been passed while deciding the application under Order 7 Rule 11 CPC. The order is required to be read as such and inference can be drawn whether the order was passed while exercising jurisdiction under any relevant provision of law or not. Since the order for transposition of the party and production of the document does not fall within the scope of Order 7 Rule 11 CPC then certainly, the order is not passed while exercising power under Order 7 Rule 11 CPC then order is passed while exercising Court''s inherent powers.

When one of the applicant has not authorized to file petition and Court finds that instead of deleting name of that applicant, he/she be transposed as non-applicant, the Court can certainly do while exercising power under Order 1 Rule 10 CPC suo motu and without any application of any party. In this case, I do not find that the petitioner can have any grievance for transposition of one of the applicant as non-applicant in the petition filed by the non-applicant-petitioner for revocation of the succession certificate.

It is admitted case that succession certificate has been granted and there is one Will which is as per the learned Counsel for the petitioner was produced in the earlier proceedings and original Will is with the petitioner then direction of the trial Court in a proceeding for revocation of succession certificate for production of will cannot cause for grievance of the petitioner. It is true that production of the document can be ordered on application of the party, but if Court finds that any document is necessary for the just decision of an issue involved in the proceedings then Court can certainly direct the party to produce the document.

In view of the above reasons, I do not find any merit in the writ petition and the same is hereby dismissed.