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2009 DIGILAW 711 (CAL)

Manju Mitra v. Anil Krishna Paul

2009-09-04

Jyotirmay Bhattacharya

body2009
JUDGMENT: 1. THE propriety of an order passed by the learned Additional District Judge, Fast Track Court-I at Barasat in O. S. No. 48 of 2008 on 27th July, 2009 vide Order No. 20, is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendants/petitioners. The instant revisional application arises out of a probate proceeding which became contentious as one of the petitioners namely Mrs. Manju Mitra objected to the grant of probate of the will dated 5th May, 2006 left by Harihar Mitra since deceased. The opposite party who is the propounder of the said will is represented by Mr. Banerjee, learned Senior Counsel. 2. BY the impugned order at least three applications filed by the petitioners were rejected by the learned Trial Judge. In one of such applications the defendant Manju Mitra prayed for setting aside of the ex-parte hearing of the said suit. In the other petition she had shown cause as to why no step could be taken on her behalf in the said suit before the learned Trial Judge on 5th May, 2009. In the other petition the petitioners prayed for issuance of direction upon the propounder to serve a photostat copy of the purported will dated 5th May, 2006 of Harihar Mitra with a further direction upon the sherestadar of the learned Trial Court for giving inspection of the purported will dated 5th May, 2006 of Harihar Mitra to the petitioners, so that an effective written statement can be filed by the petitioners herein within such time which will be fixed by the learned Trial Judge after furnishing a copy of the will and after offering inspection of the said will to the petitioners. All these three applications were disposed of by the learned Trial Judge by the common order which is impugned herein. The first two applications of the petitioners were rejected by the learned Trial Judge and as a result, the suit was not taken off from the ex-parte board of hearing and the written statement filed by the defendants/petitioners beyond time was not accepted by the learned Trial Judge. The learned Trial Judge also held that in this set of facts the petitioners prayer for inspection of the will need not be considered and the net effect thereof amounts to virtual rejection of the petitioners prayer for inspection of the said will. The learned Trial Judge also held that in this set of facts the petitioners prayer for inspection of the will need not be considered and the net effect thereof amounts to virtual rejection of the petitioners prayer for inspection of the said will. 3. REASON in support of such conclusion was given by the learned Trial Judge in great details in the impugned order. 4. AT a first glance of the reliefs claimed by the petitioner in those applications, this Court was of the view that the learned Trial Judge was not justified in passing the impugned order by rejecting the petitioners those two applications and also by not considering the petitioners other application on merit as indicated above. In fact, this Court was very much impressed by the submission of Mr. Mukherjee, learned Senior Counsel, appearing on behalf of the petitioners who contended that a probate Court being a Court of conscience should not have passed the impugned order by not allowing the petitioners to inspect the original will, as it is impossible for the petitioners to file a comprehensive written statement in the suit unless inspection of the original will is allowed to be taken by the petitioners. Mr. Mukherjee contended that even the copy of the will has not been supplied to the petitioners till date and as a result, complete and effective written statement could not be filed by the petitioners in the said suit. Mr. Mukherjee further contended that, in fact, the petitioners had no other alternative but to file an incomplete written statement in the suit for avoiding ex parte hearing of the said suit. Mr. Mukherjee further pointed out that even though the petitioners sufficiently explained the reasons for his clients default on 5th May, 2007 but, still then, neither the said written statement filed by the petitioners, was accepted by the learned Trial Judge nor the petitioners were allowed to participate in the hearing though they were present in Court at the time when the suit was fixed for hearing. Mr. Mukherjee further contended that the right of the defendants to cross-examine the plaintiffs witness cannot be denied even though the defendants written statement is not accepted. Thus, according to Mr. Mr. Mukherjee further contended that the right of the defendants to cross-examine the plaintiffs witness cannot be denied even though the defendants written statement is not accepted. Thus, according to Mr. Mukherjee even though his clients written statement was not accepted but, still then, the learned Trial Judge ought not to have fixed the said suit for ex parte hearing when the defendants were very much present in Court and were also willing to participate in the trial of the said suit. Under such circumstances, Mr. Mukherjee invited this Court to interfere with the impugned order. 5. I have already indicated above that this Court was very much impressed with the said submission of Mr. Mukherjee at the very outset but, such impression was erased completely from the mind of this Court, when the careless, negligent and desperate attitude of the petitioners all throughout during the said trial of the suit was drawn to my notice by Mr. Banerjee. In fact, all the orders passed in the said suit were read out by Mr. Banerjee very minutely. Mr. Banerjee pointed out there from that the petitioners are in the habit of filing application after application but ultimately when those applications were fixed for hearing nobody from the side of the petitioners came forward to propose those applications. As a result, the Court had no other alternative but to dismiss those applications for default. Mr. Banerjee, thus, submits that if a party after filing an application does not come forward to press the same, the Court has no other alternative but to dismiss the same for default. Mr. Banerjee, thus, supported the order of the learned Trial Judge by submitting that he does not find any fault on the part of the Court in passing the impugned order. On careful perusal of the entire order sheet relating to the said suit, this Court has no hesitation to hold that the petitioners are very careless, negligent and desperate litigants who did not even care to waste the valuable time of the Court by filing repeated applications and thereafter finding no time to move those applications before the learned Trial Court when those applications were fixed for hearing. 6. I fully agree with the contentions of Mr. 6. I fully agree with the contentions of Mr. Banerjee that the learned Trial Judge did not commit any illegality in passing the impugned order in the facts of the instant case as the petitioners have failed to show any diligence on their part in participating in the trial of the said suit for effectively contesting the said probate proceeding. But even after coming to this conclusion, this Court cannot reject this petition as this Court cannot be oblivious about the duties of the probate Court which as a Court of conscience has to certify a dead mans document with regard to its due execution by the testator. In my view when anybody who has locus to challenge the probate proceeding comes forward to assist the Court of conscience for coming to a right conclusion regarding genuineness of a will, the Court should give sufficient opportunity to such party for enabling him to assist the Court properly so that the Court of conscience can ultimately come to a correct decision on the issue regarding the grant of certificate of genuineness on a dead mans document. In my considered view, the Court should be extra cautious in dealing with a probate proceeding and as such, the learned Trial Judge instead of fixing the said suit for ex parte hearing, should have allowed the petitioners to cross-examine the plaintiffs witness and also should have allowed them to participate in the hearing of the suit. Keeping in mind the aforesaid duties of the court in dealing with the probate proceeding, this Court feels that justice will be sub-served if another opportunity is given to the petitioners to contest the said probate suit effectively in the peculiar set of facts where this Court finds that by the said will the entire property of the testator was given to a stranger to the testators family without even making any provision for his widow and/or even without giving any property to any of his natural heirs namely his widow and his sons and daughters. Accordingly, the impugned order is set aside subject to payment of costs of Rs. 10,000/- to be paid by the petitioners to the plaintiff/opposite party herein within a week from date. Accordingly, the impugned order is set aside subject to payment of costs of Rs. 10,000/- to be paid by the petitioners to the plaintiff/opposite party herein within a week from date. The plaintiff/opposite party is directed to supply a copy of the will to the defendants/petitioners and/or their learned Advocate-on-record in the Court below within one week from the date of reopening of the Court after the long Puja vacation. 7. LEAVE is granted to the defendants/petitioners to take inspection of the original will in the presence of the sherestadar of the learned Court below on a date to be fixed by the learned Trial judge immediately after reopening of the Court after the Puja vacation. The defendants are directed to take inspection of the original will on the said date without fail and will complete such inspection on the very same date. The defendants are also permitted to file additional written statement, if they so desire but positively within a period of two weeks from the date of taking such inspection of the original will. It is made clear that no further extension of time will be granted to the petitioners either for taking inspection of the will or for filing additional written statement by them. 8. THE learned Trial Judge is, thus, directed to accept the written statement as well as the additional written statement if there be any and proceed with the hearing of the suit from that stage. Let the suit be taken off from the ex parte board of hearing subject to payment of cost by the petitioners to the opposite party within the time as aforesaid. Ex parte evidence if there be any, stands set aside and the plaintiff is directed to give fresh evidence after filing of the additional written statement and/or after expiry of the time given to the defendants for filing additional written statement, in case additional written statement is not filed, as the case may be. It is made clear that this order will become effective only if the aforesaid cost is paid by the petitioners to the opposite parties within the time as fixed above; in default of such payment, the impugned order will stand revived. The revisional application is, thus, disposed of. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.