SURJIT KUMAR Vs. NEELAM RAI

JUDGEMENT

(1.) The plaintiffs instituted, a, suit, for, setting aside the orders, recorded by the learned Divisional Commissioner concerned, and, latter by the learned Financial Commissioner concerned, wherethrough, vis-a-vis, the estate of deceased, one Phoolwanti, and, on anvil, of, her Will executed, on 9.3.1981, rather mutation was attested, vis-a-vis, her estate qua the defendant. However, during the pendency of the afore civil suit, the plaintiffs cast an application, under, the provisions of Order 23 Rule 1 (3 a & b) CPC, seeking therethrough, leave of the trial Court, to withdraw the afore civil suit, with liberty to reinstitute, it, afresh. However, the learned Civil Judge concerned, has, declined both the espoused reliefs, to the plaintiffs, and, the reason(s), for, declining(s) of the espoused relief, to the plaintiffs rather ensued, from there existing no material, on record, for ensuring valid satisfaction, being made, by the learned trial Judge, vis-a-vis, the requisite parameters, embodied in Sub Rule (3) of Rule 1, of, Order 23 of CPC, provisions whereof stand extracted hereinafter:-

(2.) The learned trial Judge, while declining, the, afore espoused relief, to the plaintiffs, recorded reasons, (i) that, the afore application, hence, becoming belatedly instituted, despite, the plaintiffs, making, a, challenge, to, the apposite mutation, attested in concurrence therewith rather by the revenue officer concerned, (ii) in sequel, the learned trial Judge concluded, vis-a-vis, the averments, made by the plaintiffs, vis-a-vis, theirs remaining unaware, with, the contents, of the challenged Will, as, made by the deceased Phoolwanti being unamenable, for, meteing, any, credence thereto. Even if it is assumed, that, the afore reason hold hence, an, aura of tenacity, (iii) nonetheless, when the apposite mutation(s) became attested, on anvil, of the afore Will, made by the deceased Phoolwanti, and, further with the afore mutation, becoming, the ire-res-controversia inter-se the contesting litigants, (iv) thereupon her Will, executed on 9.3.1981, dehors any leave, being strived, from the learned trial Judge, for, its becoming challenged, rather obviously was enjoined to be adduced, into evidence, by the propounder thereof, (v) and, also it became incumbent, upon, the learned trial Judge, to make finding, vis-a-vis, its valid execution. Reiteratedly, for, the challenged mutation, becoming concluded, to, become validly, or, invalidly recorded, rather also enjoined, vis-a-vis, the afore Will, the fulcrum, thereof, hence becoming imperatively adduced into evidence, and, also becoming proven hence to be validly executed, by the deceased, one Phoolwanti, (vi) conspicuously, hence when even, dehors, any leave being espoused, by the plaintiffs, for, incorporating a challenge, vis-a-vis, the Will of deceased Phoolwanti, it hence become enjoined to be proven, to be validly executed, by, the deceased Phoolwanti, (vii) thereupon, only incidental thereto, hence purported belated challenge, if not permitted to become cast thereon, at the initial stage, rather, would preclude, the, learned trial Judge, to, render, the, afore imperative concomitant findings. In aftermath, the, interests of justice warranted, qua, the espoused leave, for, incorporating therewithin, a, challenge thereon, becoming granted rather than becoming declined.

(3.) In view of the above observations, the instant petition, is, partly allowed. Consequently, the impugned orders made, upon, CMA No. 148/6 of 2011, is, quashed and set aside, whereas, the order(s) made, upon, CMA No. 259/6 of 2011, on 1.12.2011, is, affirmed and maintained. All pending applications, if any, also stand disposed of. Records be sent back forthwith.