SUBRATA GUPTA Vs. PRIYA BRATA GUPTA & OTHERS

JUDGEMENT

(1.) In this petition under section 115 C.P.C. the petitioner has impugned the order dated 24.3.88 passed by the learned District Judge, North Tripura, Kailashahar, in Civil Misc. Case No. 2 (Letters of Administration) of 1985. By the impugned order learned District Judge cancelled the earlier order by which the petitioner was appointed as Administrator pendente lite and appointed another beneficiary Sri Priya brata Gupta, respondent No. 1 as Administrator pendente lite in respect of Sarala Tea Estate which is subject matter of Misc. Case No. 2 (Letters of Administration) of 1985.

(2.) I have heard Mr. B. Das, learned counsel for the petitioner and Mr. S. Deb, learned counsel for the opposite parties. Mr Das has assailed the impugned order on the following grounds;

(3.) Mr. S. Deb, learned counsel for the opposite parties on the other hand has submitted that the revision application is not maintainable and should be rejected in limine. Mr. Deb has drawn my attention to section 299 of the Act and has submitted that in view of the provisions of section 299, an appeal lie and, as such, the application under section 115 Code of Civil Procedure is incompetent. Mr. Deb has submitted that even if the revision petition is competent, the learned court below has committed no error of jurisdiction in passing the impugned order which merits interference under section 115 CPC. Mr. Deb has further submitted that under section 247 of the Act the learned District Judge appoints an administrator pendent lite just to manage the subject matter of the will so that properties involved are maintained and protected during the pendency of the application for probate/Letter of Administration. It is not mandatory that the Administrator should only be one of the beneficiaries under the will and that any body can be appointed by the learned court and the Administrator is to work under the control of the court and act under the direction of such Administrator does not have any vested right to hold the post and that if the court is satisfied that the Administrator, so appointed, is not managing the property properly, he has every right to remove him and to appoint another Administrator. The impugned order has not visited the petitioner with any civil consequences. Mr. Deb has also drawn my attention to the order sheets and has submitted that as early as on 18.7.85 the opposite parties no. 1 brought to the notice of the court about mis-management of the garden by the petitioner. This was followed by another complaint on 24.3.86. Admittedly, the petitioner did not file any written statement denying and rebutting the allegations. Rather it appears from the order sheet that the petitioner resorted to taking adjournment solely on the ground of illness for more than a year and the allegations contained in the complaint dated 24.3.86 could not be heard by the learned court in spite of fixing a number of dates, no prayer for filing written statement against the allegations was made. Ultimately another complaint was filed by the opposite party on 22.3.88. From the impugned order it is clear that the learned District Judge has taken into consideration the allegations made earlier on 24.3.86 as well. It is also apparent from the order sheet that the learned counsel for the petitioner was fully heard by the learned court on 23.3.88 before passing the impugned order on 24.3.88. The impugned order is also not solely based on the allegations made on the petition dated 22.3.88 but on allegations made earlier. As such, the petitioner had full opportunity to file objection against the allegations made as early as in the year 1986 and to deny the same, but he did not do so. As such, denial of reasonable opportunity to the petitioner does not arise. Mr. Deb has submitted that the learned court passed the impugned order to protect the interest of all the beneficiaries and that the order has not been passed in exercise of power under section 269 of the Act. The petitioner was appointed by the learned court as Administrator pendente lite in exercise of power under section 247 of the Act and as such, the learned court has the power to remove him also.