Sudhir Ramchandra Gogi v. Navita Balraj Jadal and others

1) The present Interim Application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 seeks to set aside the ex parte order dated 7th January 2013 passed by this Court. By the said order, the Testamentary Suit and Petition were made absolute, granting Probate of the Will of the deceased Ramchandra Shakarro Gogi dated 29th May 1992 in favour of the Plaintiff.

2) Ms. Ankita Singhania, learned counsel for the Applicant, submits that the Order must be set aside as it was obtained by misrepresentation. She refers to paragraph No.3 of the Order dated 7th January 2013, where the Court recorded that, after the original Caveatrix expired, the Chamber Order was served on the Defendant- Respondents, and that they had refused to accept service. The Court therefore observed that the refusal of service by the heirs of the original Caveatorix/Defendant constituted due service.

3) The undisputed facts are that on 21st May 1996, the original Plaintiff filed a Testamentary Petition No.368 of 1996 seeking Probate of the Will of Shri Ramchandra Shakarro Gogi. The estate of the deceased comprises of Flat No.D-49, 1st Floor, Middle Income Group VI th Cooperative Hsg. Soc. Ltd. Gandhi Nagar, Bandra East, Mumbai-4000051. The Testamentary Petition was served on the original Defendant, Late Navita Balraj Jadal @ Smita Ramchandra Gogi, who filed Caveat opposing the Grant. The Caveat was duly accepted and the Testamentary Petition was converted into Testamentary Suit No.9 of 1997. A written statement was filed, issues were framed and affidavits of evidence – including of an attesting witness - were filed. During her illness, the Defendant or her children could not pursue the litigation. On 29th August 2012, the Original Defendant expired. Her husband and children, being unaware of the litigation papers, could not coordinate with their Advocates. The Plaintiff then took out a Chamber Summons to add the legal heirs of the original Defendant.

4) Ms. Singhania submits that inspection of records revealed no affidavit of service showing that Chamber Summons was served on the present Applicants. The affidavit of service dated 8th September 2011 pursuant to the Order dated 4th July 2011 mentions incorrect address- flat No.504 instead of flat No. 502, where the Defendant was actually residing.

5) She further submits that on 18th November 2022, when the Applicant objected to the transfer of the shares in favour of the Plaintiff, the Plaintiff disclosed the existence of the Order dated 7th January 2013. Admittedly, in MHADA records, the flat continued to stand in the name of Mr. Ramchandra Shakarro Gogi.

6) The Applicants thereafter engaged Advocates to trace the records but were unsuccessful. Since the building is likely to undergo redevelopment, the Applicant seeks interim relief of status quo in respect of corpus funds and transit accommodation, which the plaintiff would otherwise claim under the Probate.

7) Mr. Prabhu Velar, learned Advocate for the Respondent, submits that, the Respondent is the original Plaintiff and the son of the deceased; the Applicants are heirs of his sister. He contends that the Application is barred by limitation since Probate was granted on 24th December 2014. He further submits that the Applicants’ claim of ignorance is unbelievable in view of the following:

8) Issues were framed by Order dated 13th October 2011. The filing of Plaintiffs’ documents and affidavit of evidence were recorded by the Order dated 8th December 2011. The attesting witness's presence was recorded by Order dated 9th January 2012. The Defendant’s demise was recorded in the Order dated 29th November

2012. The Applicants’ claim that packets were wrongly sent to Flat No.504 is baseless, since subsequent service at Flat No.502 was duly effected and the Affidavit of Service dated 18th December 2012 records remarks “refused”. Counsel submits that the Application is a mala fide attempt to harass and extract money from the Respondent. The Applicants have offered no justification for 10 years delay in the Affidavit in Support of the Interim Application.

9) Heard the learned Advocates and perused the records.

10) This is yet another case driven by greed. It is inconceivable that the Applicants were unaware of proceedings actively defended by the original Defendant – mother of the Applicant. No explanation is given as to what steps her husband and children took after her demise. The objection coincides only with redevelopment, suggesting an attempt to extract money. There is no material to show that the mother’s Advocates failed to communicate with the Applicants. The grounds are clearly insufficient to set aside the order.

11) Reliance on one wrongly-addressed packet (Flat 504 instead of 502) is misplaced, since subsequent communications were served at the correct address. There is no evidence that the Applicants were genuinely unaware of the proceedings. The law on limitation is settled: limitation runs from the date of grant of Probate, not from the date of knowledge. Reliance is placed on Lynette Fernandes v. Gertie Mathias[1] in support of the contention.

12) I find this application nothing else but a gamble and deserve imposition of exemplary costs. In this regard it would be profitable to refer to the Supreme Court decision in Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496: (2017) 3 SCC (Civ) 189: 2017 SCC OnLine SC 211 at page 504

13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. (2018) 1 SCC 271: 2017 SCC OnLine SC 1296 at page 283 Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

14. Courts across the legal system—this Court not being an exception—are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner. [Emphasis supplied]