ARBIND KUMAR SINHA Vs. DEVENDRA KUMAR SINHA

JUDGEMENT

(1.) PRESENT miscellaneous appeal has been preferred against the order dated 31.05.2006 passed in Misc. Case No.7/2005 by learned Addl. District Judge, F.T.C.5, Hazaribagh whereby and whereunder learned additional District Judge has dismissed the petition filed under OrderIX Rule9 and refused to restore the probate case No.03/1990 which stood dismissed for nonprosecution.

(2.) IT is contended that it is a mater of error of record to which learned Court below has failed to appreciate. As a matter of fact Probate Case No.03/1990 was dismissed for default on 14.08.2003 for nonprosecution whreafter Misc. Case No.04/2003 was filed to restore said Probate Case No.03/1990 in its original file and that petition was allowed on 29.04.2004 and Probate Case No.03/1990 was restored. Thereafter again said probate case stood dismissed for default on 13.04.2005 against which the appellant has filed Misc. Case No.07/2005 under OrderIX Rule9 but the learned trial court, under some confusion, has held in the impugned order that Misc. Case No.04/2003 stood dismissed vide order dated 13.04.2005. Under such circumstances, the impugned order is liable to be set aside and a speaking order may be passed in Misc. Case No.07/2005.

(3.) I have gone through the impugned order as well as certified copy of the order dated 29.04.2004 passed in connection with Misc. Case No.04/2003 which indicates that Probate Case No.03/1990 was restored. It further transpires that again on 13.04.2005 said Probate Case No.03/1990 was dismissed due to noncompliance of direction given by the Court as no requisites were filed but the learned Court below has observed that on 13.04.2005 actually Misc. Case No.04/2003 was dismissed which is not a fact as per the certified copy of the order placed before me.