- (1.)This intra Court appeal arises from the order dated 7.7.2006 passed in Notice of Motion No. 16 of 2006 in Suit No. 17 of 2003 arising from petition No. 4 of 2003. The exparte decree of dismissal of Caveat passed on 6th November, 2003 has been set aside by condoning the delay caused in filing the Notice of Motion and the original plaintiff / present appellant was directed to pay costs quantified at Rs. 25,000/-. Prayers (a) and (b) to the exclusion of prayer (c), in the notice of Motion were allowed by the impugned order.
(2.)The appellant had filed petition No. 4 of 2003 in the Original Side of this Court for getting the Probate of Will and Codicil left behind by his close friend Shri. Ram Kumar Kapur who died on 2.10.1998. The testator was survived by two children i.e. daughter by name Ms. Sonia Kapur and son by name Mr. Sunil Kapur - both major. Both the children were cited in the petition and as per the petitioner, the citation was served. However, only the daughter, on serving of the citation, had filed Caveat in the Probate petition. Thereafter, the plaintiff took out Chamber Summons No. 474 of 2003 and prayed for dismissal of the Caveat. In the chamber summons, Ms. Sonia had appeared in person and on 6.11.2003, when the chamber summons came up before the learned Single Judge, she remained absent and had not filed any reply to the chamber summons. It was under these circumstances, the learned Single Judge passed the following order: "On the last occasion i.e. on 26.6.2003, it was specifically directed that the defendant was given last chance to file reply to the chamber summons. No reply is filed. Today also the defendant is not present. She is not represented by Advocate. Under the circumstances, the chamber summons is allowed. The Caveat filed by the defendant on 24.3.2003 is dismissed. No order as to costs."
(3.)On 29.11.2003, the Probate was issued. On 1.3.2004, Ms. Sonia died and Notice of Motion No. 16 of 2006 was taken out on or about 1.3.2006 i.e. after two years of demise of Ms. Sonia. The Notice of Motion, as has been clarified by the learned Counsel for the respondent, was filed under Order IX, Rule 13 of C.P.C to set aside the order of ex parte decree which resulted in grant of probate.