MRITUNJAY GHATAK Vs. BIBHUTI BHUSHNAN SEN GUPTA

JUDGEMENT

(1.) Both the appeals have been heard analogously as they arise out of the common judgment dated 19-8-1988 passed by Shree Chiranji Singh, 4th Additional Judicial Commissioner, Ranchi, in two probate cases, namely, Probate Case Nos. 134 of 1982 and 69 of 1983 which were also heard together and disposed of by a common judgment.

(2.) There is chequered history of the case. Once both these appeals were heard by Hon'ble Mr. Justice Amir Das as he then was and by order dated 2nd February, 1994 the appeals were allowed and the judgment under appeals was set aside and both the cases were remanded back to the teamed Court below for coming to a just conclusion of the case after consideration of the different circumstances as enumerated in the remand order itself giving opportunities to both the parties to adduce further evidence in support of their respective claims. Against that remand order, Bibhuti Bhushan Sen Gupta, the respondent in both the appeals, had preferred Letters Patent Appeal Nos. 127 of 1995 (R) and 52 of 1994 (R) and both the Letters Patent Appeals had been disposed of by a common judgment and order dated 17-3-1997. It may be mentioned here that when the Letters Patent Appeals were preferred after the period of limitation with a prayer for condonation of delay under Section 5 of the Limitation Act, the original case records of both the aforementioned probate cases were not before this Court as in compliance of the remand order the original case records had been already sent back to the Court below and it appears that the Division Bench had heard the Letters Patent Appeals without original records. This should be clarified from the order dated 7-4-1997 passed by this Court when for hearing these appeals again, the lower Court records had again been called for from the Court below. The Division Bench had set aside the remand order with the following observations and directions:-

(3.) Thus when the case was placed before this Bench on the basis of the directions and observations of the Division Bench it was found that original records are not before this Court and were not placed before the Letters Patent Appeals' Court and the judgment of the Letters Patent Appeal was delivered by the Division Bench without the original records, hence the lower Court records were again called for from the original Court and then appeals were heard analogously.