SK NOOR MOHAMMAD Vs. SAMERUNNISA BIBI

JUDGEMENT

(1.) These two matters were taken up together as those are interlinked. C.O. No. 1566 of 2004 is at the instance of an applicant for grant of probate and is directed against Order No. 37 dated 9th September, 2003 and Order No. 38 dated 19th September, 2003 passed by the Additional District Judge, 2nd Court, Bankura in Judicial Misc. Case No. 2 of 2003 arising out of Probate Suit No. 4 of 1999. By Order No. 37 the learned Trial Judge allowed the application for restoration of the probate proceedings on payment of costs of Rs. 5,000/- to the respondents. By the subsequent Order No. 38, the Court rejected the application filed by the petitioner for reducing the said costs of Rs. 5,000/- and at the same time dismissed the Misc. Case No. 2 of 2003 for non-compliance of the earlier Order No. 37. The suo motu Rule being C.R. 2272 of 2004 was issued by this Court calling upon the respondents to show cause why earlier Order No. 34 dated 6th July, 2003 passed by the learned Trial Judge in Probate Suit No. 4 should not be set aside.

(2.) It appears from Order No. 34 dated 16th July, 2003 that on the date fixed for evidence of the respondents, the Court directed the applicant for grant of probate to deposit a sum of Rs. 48,400/- as Court Fees on the basis of valuation report submitted by the Collector. In view of such order, the petitioner filed an application praying for dismissal of the suit stating that as he had no capacity to pay that amount of Court Fees he was not willing to proceed with the probate application and further, he would not file such application for grant of probate in future. Considering such application, the Court dismissed the probate application for non-prosecution.

(3.) Subsequently, the petitioner filed an application for recalling that order alleging that he did not instruct his learned Advocate to file such application and due to bona fide mistake and miscommunication between the learned Lawyer and the petitioner, such application was filed.