USHA KANTA DAS (DECEASED) Vs. SEFALIKA ASH

JUDGEMENT

(1.) This is an application filed by one Radha Nath Nandy for leave to appear in person on behalf of the defendant/caveatrix.

(2.) The dispute relates to two Wills both allegedly executed by one Usha Kanta Das. The first Will was executed on 10th Sept., 1965 in which Amiya Kanti Das and Amar Nath Ash (now deceased) were made the joint executors. The testator (Usha Kanta Das) then substituted the first Will with the last and final Will dated 3rd Oct., 1975, which was registered with the Registrar of Assurances, Calcutta. In the last Will dated 3rd Oct., 1975, the testator replaced the name of his son-in-law, Amar Nath Ash (now deceased) and included his wife Smt. Ushabari Devi (now deceased) as the joint executor along with his son Amiya Kanti Das, the plaintiff no.1. It was specified in the last Will that in the event of the death of Ushabari, she shall be substituted by Jyotsna Das, the wife of Amiya Kanti Das for discharging the duty of an executor. After the death of Usha Kanta Das, the plaintiff, on coming to know of the existence of the Will dated 3rd Oct. 1975, applied for grant of probate with the consent of both Shefalika Ash and Prativa Nandy. Shefalika Ash (defendant) and Prativa Nandy are the daughters of the deceased, Usha Kanta Das. After a considerable delay of about 5 years thereafter, the plaintiffs came to know that Shefalika Ash had filed an affidavit in support of a caveat on 19th Dec., 2012. The application for grant of probate being P.L.A no. 53 of 2010 was thereafter converted into the present testamentary suit. Issues were framed in the suit and after examination of the plaintiffs' first witness (Amiya Kanti Das), the claim of the plaintiffs was dismissed by a judgment dated 8th Nov., 2016. An appeal was preferred therefrom by the plaintiffs and by an order dated 26th April, 2017, the suit was remanded for adducing the evidence of Rabindralal Ghosh, the attesting witness to the Will, who the plaintiffs had intended to produce before the Trial Court. Both the plaintiffs and the caveatrix, namely, Shefalika Ash were represented by their advocates during these proceedings. The plaintiffs then applied for framing of additional issues before the learned Judge, who was hearing the suit. At this stage, Mr. Radha Nath Nandy (the applicant herein) expressed his intention to argue the matter on behalf of the defendant/caveatrix, Shefalika Ash. By an order dated 16th Nov., 2017, passed by the Honourable Justice Sahidullah Munshi, such liberty was denied on the ground that Order III Rules 1 and 2 of The Civil Procedure Code, 1908 (CPC) does not give any scope to a party to represent a litigant if the concerned party is not an advocate. Mr. Radha Nath Nandy, was however, given leave to file an appropriate application for this issue to be considered. Mr. Radha Nath Nandy thereafter filed two applications under Order III Rules 1 and 2 of the Code of Civil Procedure and another application for rejection of the plaint.

(3.) The issue in the instant application is whether Mr. Radha Nath Nandy has a right of audience before this court.