Gujarat HC Revives Relatives’ Probate Suit Over Mother’s Registered Will, Giving Plaintiffs Until Nov 30, 2026 To File Evidence

The petitioners, as plaintiffs, sought probate of their mother’s registered will under Section 272 of the Indian Succession Act, 1925.

After the proceedings were contested, they were converted into Special Civil Suit No. 6 of 2022.

Following the framing of issues, the Trial Court dismissed the suit for non-prosecution under Order IX Rule 3 CPC on 22 November 2023.

The petitioners’ restoration application, Civil Misc. Application No. 56 of 2023, was rejected on 13 December 2024, principally on the view that no further adjournment could be granted after three adjournments under Order XVII Rule 1 CPC.

The petitioners challenged that rejection under Article 227 of the Constitution

Order IX Rule 3 CPC permits dismissal where neither party appears when the suit is called; Order IX Rule 4 provides a remedy following such dismissal, including the ability to bring a fresh suit, subject to its terms.

Order XVII Rule 1 CPC regulates adjournments and discourages unnecessary delay, but the procedural limits on adjournments do not displace the court’s duty to advance substantial justice.

In Sugandhi (Dead) v. P. Rajkumar, (2020) 10 SCC 706, the Supreme Court stated that procedural and technical requirements should not obstruct substantial justice where the opposing party suffers no serious prejudice

The High Court found that the Trial Court rejected restoration on the general ground that it could not grant another adjournment after three adjournments, without considering the merits of the restoration application.

The parties were close relatives, and the dispute arose from probate proceedings in which settlement discussions had taken place; the Court therefore did not regard the delay as necessarily unjustified.

The respondents identified no serious prejudice from restoring the suit, and dismissal for non-prosecution left open the possibility of fresh proceedings, creating a risk of duplication.

In these circumstances, the Court considered restoration with conditions preferable to permanently foreclosing adjudication.

Respondents 1.1 and 1.2 were permitted to withdraw the Rs. 10,000 deposited as costs.

The petitioners were directed to file their affidavits in lieu of examination-in-chief by 30 November 2026 and avoid unnecessary adjournments; the respondents were permitted to cross-examine them and any witnesses.

Rule was made absolute to that extent.