- (1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 23.02.2019 (annexure- 8) passed in Probate Case No.03/2013 (Title Suit No.05/2014) by which the petition filed under Order 23 Rule 1 of the C.P.C. for withdrawal of the suit, has been rejected.
(2.) The brief facts of the case of the petitioner as per the pleading made in the writ petition is that he has filed a probate case being Probate Case No.03/2013 for grant of probate in his favour in respect of the registered Will dated 05.04.2000 executed by one Nil Krishna Lahiri. The respondent nos.1 to 11 have appeared in the aforesaid probate case and have also filed reply raising no objection for grant of probate in favour of the petitioner. However, the other respondents have objected and contested the probate case, therefore, the probate case has been converted into Title Suit No.05/2014. The petitioner has filed a petition under Order 23 Rule 1 of the C.P.C. on 02.04.2018 and in course of pendency of the aforesaid petition, the respondent nos.1 to 8 have filed a petition on 24.08.2018 under Order 23 Rule 1-A of the C.P.C. for transposing them as plaintiff and the petitioner as the defendant in the suit. The petitioner has filed rejoinder to the said petition and the trial Court after dealing with the petition under Order 23 Rule 1 as also under Rule 1-A has passed the order on 23.02.2019 rejecting the petition filed for withdrawal of the probate case and transposing the defendants as plaintiffs by taking recourse of Order 13 Rule 1-A, against which, the present writ petition has been filed invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India.
(3.) Mr. Pradeep Kr. Deomani, learned counsel appearing for the petitioner has vehemently argued that if the petitioner does not intend to proceed with the proceeding of the probate case and to that effect a petition has been filed which confers power upon the trial Court to allow the withdrawal or abandon part of the claim, the petitioner cannot be compelled to contest the suit, therefore, while not allowing the withdrawal of the probate case, the trial Court has committed gross illegality. He has further argued by referring to the infirmity committed in the impugned order by transposing the defendants as plaintiffs by taking recourse of Order 23 Rule 1-A of the C.P.C., since according to him, respondent nos.1 to 8 has got no interest over the said property in view of death of one of the legatee before the Will having been probated. According to him, the fact of one of the legatee, since is not in dispute, therefore, the trial Court ought to have taken into consideration these aspects of the matter by holding that respondent nos.1 to 8 have got no interest over the property. ;