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A-15
% 18.07.2011
Present: Mr. F.S. Chauhan, Advocate for the petitioner.
Mr. S.S. Jauhar, Advocate for the respondent.
+ CM (M) No.946/2010 & CM No.13111/2010
*
The order impugned before this Court is the order dated
06.05.2010. The petitioner before the court was Veena Solanki and her minor children. Petition had been filed under Section 372 of the Indian Succession Act (ISA) for grant of succession certificate.
Respondent Karma Singh Solanki has set up a plea that she is second wife of the deceased Sukhendra Pal Singh Solanki. Her contention today before this Court is that she had earlier filed a petition under Section 372 of the ISA which was petition NO. 688/2011 and both the petitions i.e. Petition Nos. 688/2002 and
199/2003 had been ordered to be clubbed together. On a query put to learned counsel for the petitioner, he states that he does not have either the said petition or the copy of the order clubbing the two petitions. His grievance is only that the procedure adopted by the trial court is not just and fair and an interference is called for by this Court under its supervisory jurisdiction. Contention of learned counsel for the petitioner is that he had filed written submissions in the court below which have remained unconsidered; contention being that the succession about the legal heirs of the deceased Sukhendra Pal Singh Solanki stood decided by an order
2011:DHC:7763 of the Tehsildar in case No. 137/2002 on 09.07.2003; that order has since attained a finahty; doctrine of res-judicata under Section
11 of the Code was apphcable but all these contentions have not been considered in the impugned order.
The Apex Court in (2003) 2 SCC 464 Mahila Bairanai & others VS. Badribai & another has noted that use of words 'court' under Section 11 of the Code does not include the order passed by a Tehsildar; it is not a Court for the purpose of Section 11 of the
Code.
The impugned order has merely asked the parties to lead their evidence; parties are yet to go for trial; contentions raised now can well be raised by the petitioner at the time when he is permitted to lead evidence as an objector. The petition is an abuse of the process of the Court.
Dismissed.
INDERMEET KAUR, J.
JULY 18, 2011 a
2011:DHC:7763
A-15
% 18.07.2011
Present: Mr. F.S. Chauhan, Advocate for the petitioner.
Mr. S.S. Jauhar, Advocate for the respondent.
+ CM (M) No.946/2010 & CM No.13111/2010
*
The order impugned before this Court is the order dated
06.05.2010. The petitioner before the court was Veena Solanki and her minor children. Petition had been filed under Section 372 of the Indian Succession Act (ISA) for grant of succession certificate.
Respondent Karma Singh Solanki has set up a plea that she is second wife of the deceased Sukhendra Pal Singh Solanki. Her contention today before this Court is that she had earlier filed a petition under Section 372 of the ISA which was petition NO. 688/2011 and both the petitions i.e. Petition Nos. 688/2002 and
199/2003 had been ordered to be clubbed together. On a query put to learned counsel for the petitioner, he states that he does not have either the said petition or the copy of the order clubbing the two petitions. His grievance is only that the procedure adopted by the trial court is not just and fair and an interference is called for by this Court under its supervisory jurisdiction. Contention of learned counsel for the petitioner is that he had filed written submissions in the court below which have remained unconsidered; contention being that the succession about the legal heirs of the deceased Sukhendra Pal Singh Solanki stood decided by an order
2011:DHC:7763 of the Tehsildar in case No. 137/2002 on 09.07.2003; that order has since attained a finahty; doctrine of res-judicata under Section
11 of the Code was apphcable but all these contentions have not been considered in the impugned order.
The Apex Court in (2003) 2 SCC 464 Mahila Bairanai & others VS. Badribai & another has noted that use of words 'court' under Section 11 of the Code does not include the order passed by a Tehsildar; it is not a Court for the purpose of Section 11 of the
Code.
The impugned order has merely asked the parties to lead their evidence; parties are yet to go for trial; contentions raised now can well be raised by the petitioner at the time when he is permitted to lead evidence as an objector. The petition is an abuse of the process of the Court.
Dismissed.
INDERMEET KAUR, J.
JULY 18, 2011 a
2011:DHC:7763
JUDGMENT