NIRA KANTA CHUTIA Vs. BEDOI CHUTIANI

JUDGEMENT

(1.) THE appellant, Nira Kanta Chutia, filed an application for probate in respect of a will left by late Chatradhar Chutia in the Court of the District Judge, U. A. D. at Jorhat. The two respondents filed objections. As the matter became contentious, it was registered as a suit, being Title Suit No. 23 of 1969. Eventually the suit was fixed for hearing on 9-5-72. On that date the appellant filed an application praying for an adjournment on the grounds that one of his witnesses was ill and that his counsel was also unwell. The petition was rejected and the suit was dismissed. On 11-5-1972 the appellant filed an application for restoration of the suit. Notice of the petition for revival was issued to the respondents. They appeared and filed objections contending that there was no sufficient cause for revival of the suit. The learned District Judge, after hearing the parties held: (i) that the appellant had 3 witnesses including Kalicharan, who was absent on 9-5-72. Even in the absence of Kalicharan, the appellant could have examined the other two attesting witnesses to prove the execution of the Will; and (ii), if the appellant's advocate, who was in-charge of the case was unwell, the appellant could have engaged another Advocate; and in that view he rejected the application for revival by his impugned order dated 29-1-73.

(2.) THE appellant has filed this appeal under Order 43, Rule 1 (c) read with Section 104 of the Code of Civil Procedure (hereinafter called 'the Code') against the aforesaid order of the District Judge.

(3.) SIMILAR preliminary objection was taken in the case of Debi Charan Sarma v. Lilamati Debi, reported in ILR 1949 (1) Assam 54, in which a Division Bench of this Court, relying on a decision of the Madras High Court reported in AIR 1919 Mad 112 and two decisions of the Lahore High Court reported in AIR 1936 Lah 712 and AIR 1936 Lah 863, held that an application under Order 9, Rule 9 lies for setting aside an order dismissing a probate proceeding for default of the applicant and as such an appeal under Order 43, Rule 1(c) of the Code did lie. As the point now raised before the Division Bench was not raised in the case of Debi Charan Sarma v. Lilamati Debi (supra), this appeal has been referred to a larger Bench. This is how the matter has come up before us.