JUDGMENT ASHIM KUMAR BANERJEE.J: 1. Late Narendra Krishna Das died leaving him surviving his widow Lilabati Das, seven sons and one daughter. Two of the sons namely, Priobrata Das and Mohanlal Das died intestate as bachelor. After their death, Lilabati became the owner of the 1/3rd share in the property left by her husband (1/9th from husband and 1/9th each from two pre-deceased sons). The other shareholders were her five sons and one daughter. Youngest one Nemai Das did not have sufficient means of livelihood as we find from the Will of Lilabati. Lilabati bequeathed her all belongings including the 1/3rd share in the family property to her son Nemai Das to the exclusion of her other children being Tushar Kanti Das, Sashanka Sekhar Das, Dipak Das, Bholanath Das and Smt. Krishna Bairagi. Nemai applied for a probate. Bholanath and Krishna supported the Will. The Will was a registered one. Dipak, Tushar Kanti and Sashanka Sekhar appeared in Court after the notice of citation had been published in newspaper. They raised verbal objection and took time to file written objection. The learned District Judge treated the probate application as a contentious cause to be treated as a regular civil suit and transferred it to the Court of Additional District Judge, Barasat. From the Lower Court Record it appears, at least on four occasions the caviators took time to file written objection. However, they did not ultimately file any such objection. The matter was placed before the Additional District Judge in due course when no one appeared on behalf of the caviators. The learned Judge, upon considering the evidence of the propounder as also the attesting witnesses and considering the consent given by some of the co-sharers, granted probate in favour of Nemai on November 30, 2002. On March 3, 2003 Dipak filed an application under Order 9, Rule 13 of the Code of Civil Procedure on his behalf as well as on behalf of Tushar Kanti and Sashanka Sekhar, inter alia, claiming that they were under misconception that the matter would be amicably settled between the parties as assured by Nemai. They were also misguided by their lawyer who had advised them not to come to see him unless regular writ of summons had been served upon them like a civil suit. They were also misguided by their lawyer who had advised them not to come to see him unless regular writ of summons had been served upon them like a civil suit. Similar plea was taken in the application for condonation of delay made under Section 5 of the Limitation Act. Nemai filed objection. According to him, the alleged causes shown by Dipak were not just and sufficient. Dipak filed affidavit-in-reply admitting that they were misguided by their lawyer. The learned Judge dismissed the application. Hence, this appeal. 2. Mr. Bidyut Kumar Banerjee, learned senior advocate appearing on behalf of the appellants contended before us that under Section 295 of the Indian Succession Act the procedure laid down in the Code of Civil Procedure applicable for a civil suit would be applicable in case of probate proceeding. Hence, the learned advocate was under the misconception that a writ of summons would be served calling upon the caveators to file written statement. The caveators also were under bonafide belief that Nemai would settle the dispute out of Court as assured by him. Mr. Banerjee further contended that the specific plea of assurance was taken in the application as well as in the affidavit-in-reply. No specific suggestion on that score was given by Nemai while cross-examining Dipak. According to him, a liberal approach should be taken in an application under order 9 Rule 13 of the Code of Civil Procedure particularly when the litigants were misguided as referred to above. He relied on the following decisions to support his contention. i) A.E.G. Carapiet –VS- A.Y. Derderian reported in All India Reporter 1961 Calcutta Page-359. ii) Rafiq & Another –VS- Shilal & Another reported in All India Reporter 1981 Supreme Court Cases Page-1400 iii) Bimla Kanta Sengupta –VS- Sarojini Koner reported in All India Reporter 1985 Calcutta Page-275. iv) Collector, Land Acquisition Anantnag & Another –VS- Mst. Katiji & Others reported in All India Reporter 1987 Supreme Court Page-1353. v) Srei International Finance Ltd. –VS- Fairgrowth Financial Services Ltd. & Another reported in 2005 Volume-XIII Supreme Court Cases Page-95. vi) West Bengal State Electricity Board –VS- Gilloram Gouri Shankar reported in 2006 Volume-I Calcutta High Court Notes Page-380 3. Mr. Chittapriya Roy Chowdhury, learned counsel appearing for Nemai on the other hand contended that Dipak was the sole objector. v) Srei International Finance Ltd. –VS- Fairgrowth Financial Services Ltd. & Another reported in 2005 Volume-XIII Supreme Court Cases Page-95. vi) West Bengal State Electricity Board –VS- Gilloram Gouri Shankar reported in 2006 Volume-I Calcutta High Court Notes Page-380 3. Mr. Chittapriya Roy Chowdhury, learned counsel appearing for Nemai on the other hand contended that Dipak was the sole objector. Although he took the name of Tushar Kanti and Sasanka Sekhar they did not come forward to support Dipak either by filing any separate pleading or by adducing evidence. Mr. Roy Chowdhury further contended that the alleged assurance as pleaded by Dipak would not justify the prolonged delay. He contended that the probate proceeding was filed on July 5, 2000. The appellants miserably failed to justify the delay caused during the period between 2000 to 2002. Probate was granted after about two and half years of filing the said proceeding. He prayed for dismissal of the appeal. 4. In the case of Bimla Kanta Sengupta (Supra), the Division Bench of our Court considered whether an application under Order 9 Rule 9 of the Code of Civil Procedure could be applied in a case where a probate proceeding was dismissed for default. The Division Bench held that in view of Section 144 of the Code of Civil Procedure and taking note of the provisions of Section 268 and 295 of the Indian Succession Act the application under Order 9 Rule 9 could be applied and could be pressed into action for restoration of the probate proceeding. Mr. Banerjee however wanted to apply the ratio decided, to support his contention, once the probate proceeding was declared a contentious cause and was directed to be tried as an ordinary civil suit all trappings of Code of Civil Procedure would be made applicable that would include service of writ of summons. 5. Mr. Banerjee relied upon the decision in the case of A.E.G. Carapiet (Supra) to support his contention that the assertion as to assurance must be accepted in absence of specific suggestion being given to Dipak in cross-examination. The Division Bench of our Court in the said case observed, “wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all”. 6. The Division Bench of our Court in the said case observed, “wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all”. 6. In the case of Srei International Finance Limited (Supra), the Apex Court observed that litigant should not be denied hearing unless something akin to gross negligence or misconduct is proved. The Apex Court observed so in a proceeding under Order 9 Rule 13. Similar view was taken earlier by the decision in the case of Rafique (Supra) where the Apex Court restored a matter dismissed for default after years together. It was alleged that the appeal was dismissed and the restoration was delayed due to lawyers’ fault. 7. In the case of Collector Land Acquisition (Supra), the Apex Court observed, a reasonable approach should be made by the Court of Law while considering an application for condonation of delay. 8. In the case of West Bengal State Electricity Board (Supra), our Division Bench, considering the decision in the case of Collector Land Acquisition (Supra), took a liberal approach while interpreting the phraseology “sufficient cause”. 9. On the first issue pressed by Mr. Banerjee, we are of the view that a mistake in law or ignorance in law, could not be sufficient ground for recall of the judgement. We express doubt as to the bonafide of the appellants, while taking such plea. On scrutiny of the Lower Court Records, we find that on repeated occasions, learned lawyer took time to file objection. Had they been under bonafide impression that they would be required to file written statement only after writ of summons was served upon them question of applying for repeated extensions to file objection would not have arisen. 10. Similarly, we doubt the veracity of the second plea. If there was any assurance of settlement that prevented the appellant to file written objection the application for adjournment and/or extension of time to file written objection would have referred such plea. We do not find any indication on that score. 11. We are akin to the well-settled principle of law on the liberal approach in case of condonation of delay or restoration of a matter. We do not find any indication on that score. 11. We are akin to the well-settled principle of law on the liberal approach in case of condonation of delay or restoration of a matter. However, some justification (may not be so full proof) should be there that would impress the Court as to the bonafide of the applicant. A litigant, whose prayer is based on incorrect premise that is far from truth, is not expected to deserve discretion to be exercised in his favour. The decisions cited at the Bar would be of no assistance to a litigant who deliberately failed to contest the proceeding and approach the Court for undoing the settled thing that too, after years together. If this is permitted it would not only disturb the sanctity of a judgement but also disturb the smooth running of the justice delivery system. The appellants, in our view, do not deserve any sympathy from this Court. We are not at all impressed with the case made out by the appellants that would deserve interference at our end. 12. Any decision of a Court below, particularly when that would involve exercising of a discretionary power of the Court must not be upset by the Court of Appeal unless there was any patent illegality or miscarriage of justice. A discretion can be exercised by one Court in one way. The Court of Appeal, in an independent proceeding could have exercised discretion in the similar fact in a different way that would not permit the Court of Appeal to upset the judgement of the Court below and substitute their own view in ordinary circumstance. We do not find any exceptional cause to upset the well reasoned decision of the Court below. 13. The appeal fails and is hereby dismissed. There would be no order as to costs. 14. The lower court records be sent down at once. 15. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.