What is distinction between jurisdiction of court under Section 96 of CPC vs. Order 9 Rule 13 of CPC?

Leave granted.

2. This appeal questions the correctness of the concurrent

rejection of an application under Order IX Rule XIII Code of

Civil Procedure, 1908 (CPC) , filed by the present appellant before the First Civil Judge, Class-I, Shivpuri, Madhya Pradesh in Misc.

Case No.08 of 2014 as per order dated 14th October 2014 as

upheld by the Fourth Additional District Judge, Shivpuri, in

Misc. Appeal No.01 of 2018 in terms of order dated 10th January,

2019, and by the High Court of Madhya Pradesh at Gwalior, in

Civil Revision No.376 of 2019 by order dated 31st October 2019.

3. The respondents No.1 and No. 2, namely Renu and Jyoti

Maheswari respectively, had filed an application under Section

372 of the Indian Succession Act, 19252 to be able to receive the

retiral benefits of their father late Mr. Omprakash Maheshwari,

who passed away on 4th April 2011, from Respondent No.3-

2 372. Application for certificate.-

(1) Application for such a certificate shall be made to the District Judge by a petition signed

and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil

Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of

a plaintiff, and setting forth the following particulars, namely:–

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence

was not within the local limits of the jurisdiction of the Judge to whom the application is

made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this

Act or any other enactment, to the grant of the certificate or to the validity thereof if it were

granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to

be false, or does not believe to be true, that person shall be deemed to have committed an

offence under section 198 of the Indian Penal Code. (45 of 1860.)

(3) Application for such a certificate may be made in respect of any debt or debts due to the

deceased creditor or in respect of portions thereof.]

Madhya Pradesh Central Electricity Distribution Company,

where the deceased had superannuated after working as a

lineman. It was their contention that they were the daughters of

the deceased and that their mother (his wife), namely Asha

Maheswari, had predeceased him on 3rd October 2006.

Respondent No.3 opposed this on the ground that in the official

records the name of his wife is one Mrs. Malti Maheswari and

therefore, only she is entitled to the benefits as may be payable

by them. The Court, having considered evidence, granted the

Succession Certificate.

4. It was to set aside this Certificate that the application under

Order IX Rule XIII CPC was filed since Mrs. Malti Maheshwari,

did not appear before the concerned court. The First Civil Judge,

Class-I, Shivpuri, rejected the application observing that an

appeal had been preferred against the grant of Succession

Certificate in which Mrs. Malti Maheshwari appeared through

counsel. As such, they could not lay challenge thereto, by way of

an application under Order IX Rule XIII CPC.

5. On appeal, the District Judge, upheld the above order

observing that the evidence on record clearly showed that Mrs.

Malti Maheshwari, was duly served and the notice mentioned the

date of hearing as 25th August 2011. No reason has been put forth

for non-appearance on the appointed day. Still further, it was

observed that since she had been party to the appeal against order

granting Succession Certificate, it was not open for her to

subsequently challenge the same by way of an application under

Order IX Rule XIII CPC.

6. In terms of the impugned judgment, the High Court

dismissed the civil revision directed against the above orders

observing as follows:-

“(11) So far as the applicant no.1 is concerned,

the respondents no.1 and 2 in their application under

Section 372 of Indian Succession Act have

specifically stated that it is the applicant no.2 who

has moved an application for payment of dues of the

deceased Om Prakash Maheswari. It was not the

case of respondents no. 1 and 2 that the applicant

no.1 had also staked his claim over the dues of Om

Prakash Maheswari. Once, the applicant no.1 had

not claimed any right in the estate of late Om

Prakash Maheswari, then it cannot be said that either

he was a necessary party or any prejudice has been

caused to him because of lapse in the public notice.

Under these circumstances, this Court is of the

considered opinion that the Courts below did not

commit any mistake in rejecting the application filed

under Order 9 Rule 13 of CPC.”

7. It is in the aforesaid circumstances that the matter has

travelled up to us. Order IX Rule XIII CPC to state the obvious

is an application made to set aside an ex parte decree. It is also

a matter of record that they appeared in the appeal preferred

against the grant of Succession Certificate. The primary

requirements of an application under Order IX Rule XIII CPC is

whether the summons were duly served and whether there is

sufficient cause that prevented the party from appearing in Court

[See Neerja Realtors Pvt. Ltd. vs. Janglu 3 (2018) 2 SCC 649 and Parimal vs. Veena (2011) 3 SCC 545.

8. It is an undisputed fact that appellant no. 1 was a minor,

aged about 12 years, at the time when the respondents initiated

proceedings for grant of a Succession Certificate. A public notice

was issued pursuant to the orders of the learned Additional

District Judge; however, the said notice did not clearly specify

that the proceedings were initiated on account of the death of Late

Mr. Omprakash Maheshwari.

The observation of the learned Additional District Judge,

vide order dated 10.01.2019, to the effect that the minor could

have, upon publication of the public notice, impleaded himself as

a party and raised objections, is wholly erroneous and perverse.

Being a minor at the relevant time, appellant no. 1 was legally

incapacitated from taking such steps. Furthermore, the

respondents were fully aware of the existence of appellant no. 1

as one of the legal heirs. Despite such knowledge, no steps were

taken to ensure the appointment of a lawful guardian to represent

the minor in the proceedings. It is only upon attaining majority

that appellant no. 1 acquired the legal capacity to challenge the

said proceedings and accordingly initiated the present action.

There is nothing on record to suggest any collusion between the

minor and his mother.

Section 372 of the Indian Succession Act, 1925 governs

applications for grant of succession certificates, whereas Section

383 provides for revocation of such certificates on specified

grounds. Where an application is defective or material facts have

been suppressed or misstated, the certificate issued pursuant

thereto is liable to be revoked under Section 383 of the Act. The

factual matrix of the present case squarely justifies invocation of

the said provision.

Additionally, there are material discrepancies in the

particulars furnished in the original application. The mother of

the minor, who is the widow of Late Mr. Omprakash

Maheshwari, was incorrectly described as the wife of one

Jitendra Jain alias Jinna. No explanation has been provided for

such a serious mis-statement, nor is there any material on record

establishing any connection between appellant no. 2 and the said

Jitendra Jain. These inaccuracies further vitiate the proceedings.

It is also pertinent to note that the minor was never impleaded as

a party in the succession proceedings, thereby depriving her of

an opportunity to be heard.

The settled principle of law is that the scope of proceedings

under Section 96 of the Code of Civil Procedure and Order IX

Rule XIII CPC are distinct. Order IX Rule XIII CPC confers a

wider jurisdiction, enabling the applicant to demonstrate

sufficient cause for non-appearance and seek setting aside of an

ex parte decree (Bhanu Kumar Jain v. Archana Kumar) (2005) 1 SCC 757-3J.

9. In the present case, the appellant filed an application under

Order IX Rule XIII CPC after dismissal of the appeal. In view of

the facts and circumstances discussed hereinabove, the

application deserves to be allowed. The High Court erred in

concluding that the minor had not asserted any right through Late

Mr. Omprakash Maheshwari, and further erred in holding that she

was neither a necessary nor a proper party. The finding that no

prejudice was caused to the minor is unsustainable in law.

Further, the High Court also failed to appreciate that a minor

cannot be expected to respond to a public notice or initiate legal

proceedings independently. The conclusions drawn by the courts

below suffer from serious legal infirmities.

10. Accordingly, the appeal is allowed. The impugned order is

quashed and set aside. Consequently, the application under Order

IX Rule XIII CPC is allowed. The ex parte order granting the

Succession Certificate is hereby quashed and set aside. The

matter is restored to its original number. The parties are directed

to appear before the competent court dealing with the succession

certificate proceedings on a date to be fixed by the court.

11. Considering that the matter pertains to the year 2011, the

parties are directed to extend full cooperation to ensure

expeditious disposal. The concerned Court is requested to decide

the matter preferably within a period of one year from the date of

appearance of the parties.

Pending application(s), if any, shall stand disposed of.

……………………………………J.

(SANJAY KAROL)

…………………………………….J.

(AUGUSTINE GEORGE MASIH)

NEW DELHI

April 1, 2026