Full Text
HIGH COURT OF DELHI
Date of Decision: 11.07.2025
OM PAL .....Petitioner
Through: None.
Through: None.
JUDGMENT
1. The present Petition was listed before this Court on 09.07.2025 when the following directions were passed:
2. The record reflects that the matter is pending before this Court for the last seven years. The Petitioner had obtained interim direction from this Court on 08.10.2018 and thereafter, has taken multiple adjournments in the matter including on 14.08.2019, 14.11.2022, 28.08.2023, 06.02.2025 and 09.07.2025. 2.[1] In addition, after it was pointed out to the learned Counsel for the Petitioner on 09.07.2025 that the Petition is not maintainable, the Petitioner stopped appearing after seeking a passover from the Court.
3. None appears for the Petitioner today as well.
4. The order under challenge being order dated 25.07.2018 passed by learned ACJ/ARC (Central), Tis Hazari Court, Delhi [hereinafter referred to as “Impugned Order”] has been passed in an Application under Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] which was filed by the Petitioner seeking a relief in the suit filed by the Respondent/Plaintiff be dismissed for want of prosecution. 4.[1] Section 151 of the CPC is set out below: “Section 151. Saving of inherent powers of Court. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 4.[2] This provision clearly does not bar any suit from being filed before the Court. It only states that nothing shall limit the inherent powers of the Court to pass such orders as are necessary in the interest of justice. The provision cannot be extended to include orders to dismiss the plaint as has been prayed for in the Application filed by the Petitioner to dismiss the suit for want of jurisdiction.
5. As stated above, the present Petition challenges an order dated 25.07.2018 passed by the learned Trial Court in Civil Suit No. 94070/16 captioned Shri Hoshiar Singh v. Shri Om Pal & Ors. The Impugned Order has been passed in an Application filed by the Petitioner seeking dismissal of the suit under Section 151 of the CPC for want of jurisdiction and subsequent developments. The learned Trial Court has adjudicated the Application and has found that there is no merit in the Application and found that the Court has jurisdiction to try the suit.
6. It is apposite to set out the grounds that have been taken in the Application under Section 151 of the CPC filed by the Petitioner. Firstly, the Petitioner has stated that the Suit is barred by Section 185 of the Delhi Land Reforms Act, 1954 [hereinafter referred to as “DLR Act”]. Secondly, it is contended that the suit is barred by limitation. Thirdly, it is contended in the Application that the validity and genuineness of the Will can be decided only by the Probate Court and not by the learned Trial Court.
7. The learned Trial Court after examining the Application, gave a finding that the grounds as taken by the Petitioner, the same grounds were also taken in an Application which was filed previously and dismissed by the learned Trial Court. 7.[1] The record of the learned Trial Court reflects that the Petitioner had filed an Application under Order VII Rule 11 of the CPC on 30.05.2012. It is apposite to set out paragraph 3 (a) and (g) and paragraph 5 of the Application in this behalf:
following questions should be taken into consideration by the probate court and not by a civil court while adjudicating a testament (Will): a) Whether when Specific law is provided to get the Will probated under the Succession Act, can the procedures of General law could be adopted to get the Will validated by filing the suit for Declaration? xxx xxx xxx g) Whether the mutation recorded by the Revenue Court under the provisions of Delhi Land Reforms Act, 1954, if any, is liable to be challenged, the same can be done only before the Appellate Revenue Court and not before the Civil Court, especially in view of the Section 185 of Delhi Land Reforms Act, 1954? …
5. Besides above, the suit of the plaintiff is also hit by the Section 185 of the Delhi Land Reform Act, 1954.” [Emphasis Supplied]
8. This Application was decided by the learned Trial Court by its order dated 02.09.2013. On that date, learned Counsel for the Petitioner had sought liberty to withdraw the Application with a request to argue on legal point taken in the Application at final stage and thus the Application was dismissed as withdrawn and the matter was fixed for prosecution evidence on 06.11.2013. The relevant extract of the order dated 02.09.2013 passed by the learned Trial Court is set out below: “Cost paid to the defendant. Today the matter is fixed for arguments on the application under Order VII Rule 11 CPC moved on behalf of the defendant. However, during the course of arguments, learned counsel for the defendant wants to withdraw the application with a request to argue on the legal point taken in the application at final stage of the present suit. In view his submission, the application U/o VII Rule 11 CPC is dismissed as withdrawn and the defendant may argue on the legal point taken in the application at final stage. Put up for entire PE on 06/11/2013. If any witness is required to be examined, be summoned by steps to be taken within seven days. Advance copy of the affidavit, if any, be supplied to the opposite party at least seven days prior to the next date of hearing.” [Emphasis supplied]
9. The learned Trial Court in the Impugned Order has stated that the objection taken by the Petitioner were also taken in the Application filed under Order VII Rule 11 of the CPC which was dismissed as withdrawn. The reference to the order dated 02.09.2013 was also made in this behalf by the learned Trial Court. Inspite of the aforegoing, the learned Trial Court examined the objections taken, more specifically, under Section 185 of the DLR Act as well as objections taken with respect to the probate of the Will. The learned Trial Court found that so far as concerns the provisions of Section 185 of the DLR Act and the issue of probate of the Will, the same are without any merit and has dismissed the Application giving a finding that; firstly, debarring of suits in a Civil Court is only in certain circumstances and this suit is not one of those. Secondly, relying on Winifred Nora Theophilus v. Lila Deane[1] and Bimla Gaindhar v. Uma Gaindher & Anr.2, it has been held that no probate of a Will is necessary in the city of Delhi. It is apposite to extract the finding of the learned Trial Court in this behalf:
AIR 2002 Delhi 6 AIR 2004 All. 329 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.
186. Procedure when question of title is raised. - (1) Notwithstanding anything contained in section 185, if in any suit or proceedings in column 3 of Schedule I, a question is raised regarding the title of any party to the land which is the subject-matter of the suit or proceeding and such question is directly and substantially in issue the court shall, unless the question has already been decided by a competent court, frame an issue on the question of the title and submit the record to the competent civil court for the decision of that issue only. Explanation. - A plea regarding the title to the land which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be, deemed to raise a question regarding the title to the land within the meaning of this section. (2) The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it. (4) An appeal from a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under sub-section (2) shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the court to which, the issue of title has been referred."
6. It is apparent that subsequent Section 186 of Delhi Land Reforms Act has specifically stated that the question regarding tide of agriculture land is to be decided by a Civil Court. Brief facts of the present case are that a relative of plaintiffs and defendants has died and both the plaintiffs and defendants have set up different Wills of their relative to claim his estate. The present suit has been filed by the plaintiffs for declaring that the alleged Will dated 25.01.1992 in favour of defendant no. l is null and void as well as for declaring the Will dated 12.05.1994 in favour of plaintiffs is valid and enforceable. Such a case is not covered by Schedule-I of Delhi Land Reforms Act. It is settled principle of law that when the properties situated outside the area mentioned in section 57 of Indian Succession Act (i.e. area within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or within the territory which was subject to Ld. Governor of Bengal), probate of the Will qua same is not required. Reliance being placed on Winifred Nora Theophilus vs. Lila Deane AIR 2002 Delhi 6, wherein it was held that if a Will is made by a Hindu outside Bengal, Madras or Bombay then embargo contained in Section 213 Indian Succession Act shall not apply. Similarly held in Bimla Gaindhar Vs. Uma Gaindher AIR 2004 All. 329. Similarly held by Hon'ble Apex Court in Clarence Pais Vs. Union of India AIR 2001 SC 1151. Hence, the present Court is having necessary jurisdiction to try the present suit. With these observations, the present application is dismissed.” [Emphasis supplied]
10. Section 185 of the DLR Act provides that no Civil Court would have jurisdiction to entertain petitions/applications that are mentioned in column 7 of Schedule I of the DLR Act. The Schedule sets out the description of Applications and other proceedings and the Court where they ought to be filed. The Schedule is detailed and runs into several types of suits and Applications in respect of Bhoomidari rights and the rights of Assami. The Application as filed by the Plaintiff, other than an averment that the suit is not maintainable in view of the prohibition of Section 185 of the DLR Act does not set out how the land is agricultural land and the proceedings in respect thereof can only be decided in accordance with the Act.
11. The suit filed by the Petitioner is for declaration and consequential relief and permanent and mandatory injunction. In any event, the learned Trial Court gave a finding that this aspect will be examined at the stage of final arguments. This Court finds no infirmity with such finding.
12. So far as concerns the finding of the learned Trial Court that the probate of a Will is not necessary in the city of Delhi, it is no longer res integra that the probate of a Will is not compulsory in Delhi. The learned Trial Court has correctly relied upon the Winifred Nora in this behalf.
13. Undisputably, the matter is pending since the year 2000 and has been at the stage of the evidence since 06.11.2013 as can be discerned from Trial Court’s order dated 02.09.2013 dismissing the Order VII Rule 11 application filed by the Petitioner [Defendant before Trial Court]. The record also reflects that the learned Trial Court has granted repeated opportunities to the Petitioner to conclude its evidence in an expeditious manner which has not been done. 13.[1] It is also borne from the record that the suit filed by the Defendant was filed in the year 2000 and the order sheets also reflect that after multiple hearings, the Applications as filed by the Defendant was filed during the evidence stage and there is a finding by the learned Trial Court that multiple Applications were filed merely to delay the proceedings. Thus, and in view of the deliberate non-appearance of the Petitioner and in view of the aforegoing, this Court has deemed it apposite to examine the matter.
14. A Coordinate Bench of this Court had by its order dated 08.10.2018 that the pronouncement of the judgment by the learned Trial Court is stayed. Clearly, thus the Petitioner is deliberately not appearing before the Court.
15. In any event, the maintainability of this Petition is also subject matter of challenge. It is no longer res integra that the provisions of Section 115 of the CPC cannot be invoked except where an order if made in favour of the revisionist would have finally dispose of the suit or proceedings. This is set out in the proviso to Section 115 of the CPC, which is below: “Section 115 – Revision The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.” 15.[1] The Supreme Court in Ambadas Khanduji Shinde v. Ashok Sadashiv Mamurkar[3], has held that the revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate courts. Under Section 115 of CPC, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. The Supreme Court in Ambadas Khanduji case has held:
15.[2] The Supreme Court in Shiv Shakti Co-operative Housing Society, Nagpur v. M/s. Swaraj Developers[4] case has held that unless the order if given in favour of the party applying for the revision would have given finality to the suit or other proceeding, a revision is not maintainable. The relevant extract of the Shiv Shakti case is set out below: “32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is “yes” then the revision is maintainable. But on the contrary, if the answer is “no” then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115. There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” 15.[3] In the case of Gayatri Devi v. Shashi Pal Singh[5], the Supreme Court while relying on the Shiv Shakti case has held that an order interim in nature or which does not finally decide the lis, cannot be challenged by way of revision under Section 115 CPC.
16. Concededly, the Impugned Order is in the nature of an interim order and does not finally decide the lis between the parties. In any event and as stated above, the evidence in this matter is pending since the year 2012. Thus, this Court finds no reason to interfere with the Impugned Order.
17. The present Petition is accordingly dismissed for non-prosecution as well as on merits, with costs in the sum of Rs. 25,000/- to be payable by the Petitioner directly to “DHCBA Cost A/c No. 15530110179338”. All interim orders stand vacated. The proof of costs shall be filed with the learned Trial Court.
18. The parties shall appear before the learned Trial Court on 20.08.2025.
19. A copy of the order passed today shall be dispatched by the Registry to both the parties.
TARA VITASTA GANJU, J JULY 11, 2025/r/pa