KANAILAL KHAN Vs. ANIL KUMAR KHAN

JUDGEMENT

(1.) THE only question involved in this appeal concerns the maintainability of a suit arising on an application for grant of Letters of Administration with a copy of the will annexed filed by the first respondent in the Court of Dist. Judge, Howrah on november, 26, 1969. The application which was registered as Letters of Administration Suit No. 11 of 1969 relates to the estate of one Bibhuti Bhusau khan, father of the appellant and some of the respondents including the first respondent. The question as to the maintainability of the suit arises on the following facts: -"sometime in February, 1967, the first respondent, Anil Kumar Khan, had filed a similar application for Letters of Administration in respect of the estate of his father in the same court which was numbered letters of Administration suit no. 2 of 1967. The appellant before us, kanai Lai Khan, appeared in that suit and filed a written statement On january 2, 1969 the plaintiff of that suit, anil Kumar Khan, made an application stating that pursuant to a proposal for amicable settlement of all disputes among the parties he did not wish to proceed further with the suit and prayed that "he be permitted to withdraw the suit or the suit be dismissed for non-prosecution''. It appears that Kanai Lal Khan filed an objection to this application. By order no. 137 made on January 3, 1969, the learned District Judge found that "no ground has been made out for withdrawing the suit" rejected the application, and directed that "parties must get ready". It appears from the certified copy of the order sheet of the said suit which was produced before us that on January 3, 1969, a petition for the appointment of an Administrator pendente lite was fixed for hearing and one would have thought that the learned Judge's direction to the parties was to get ready for the hearing of the said petition. Order No. 138 passed later on the same day however records : -

(2.) IT does not appear from the certified copy of the order sheet that the suit was fixed for hearing on that day.

(3.) THEREAFTER on November 26 1969, anil Kumar Khan made another application for letters of Administration in the Court of the District Judge, Howrah, which, as stated already was registered as letters of Administration suit No. 11 of 1969. In this application he referred lo the earlier proceeding and allegedinter alia, that he had been misled by the appellant before us to make the application for withdrawal or dismissal of the earlier suit for non-prosecution. On december 22, 1969, Kanai Lai Khan applied before the District Judge for dismissal of Letters of Administration suit No. 11 of 1969 as not maintainable in view of the fact that the earlier suit had been dismissed. By his order dated february 9, 1970, the learned District judge rejected the prayer for dismissal of the suit subject to the condition that the plaintiff paid costs amounting to rs. 50/- to Kanai Lal. In this appeal appellant Kanai Lal Khan questions the correctness of this Order.