BHAGWAN LAL Vs. ARVIND LAL

JUDGEMENT

(1.) This revisional application under Section 115(1) of the Code of Civil Procedure is directed against the judgment and order dated 29.9.2007 passed by Addl. Judicial Commissioner -II -cum -Special Judge, Ranchi in Misc. Case No. 02 of 2005 whereby he has rejected the petitioner's application purported to be under Order IX, Rule 6, CPC for setting aside the order dated 21.9.2001 by which the Probate Case was dismissed for default.

(2.) IT appears that petitioner -applicant filed application under Section 276 of the Indian Succession Act, 1925 for the grant of probate with regard to Will dated 28.4.1987. The said application was registered as Probate Case No. 172 of 1991. On being noticed, the Opposite Parties appeared and filed their no objection. The Court below thereafter framed issues and fixed the case for hearing. It is alleged that although the case was adjourned on different dates, but no step was taken by the petitioner or his advocate and as such, the Probate Case was dismissed for default by the 2nd Addl. Judicial Commissioner, Ranchi on 21.9.2001. The petitioner filed application in 2005 under Order IX, Rule 6, CPC for setting aside the order of dismissal and for restoration of Probate Case. A separate application under Section 5 of the Limitation Act was also filed for condonation of delay. The Court below allowed the limitation petition and condoned the delay in filing the restoration application. In the meantime, the original opposite party, namely, Lakhan Lal died and as such, his two sons were substituted in his place. On being noticed in the restoration application, the opposite parties appeared and opposed the restoration application. The Court below after hearing the parties, by terms of the impugned judgment and order dated 29.9.2007 dismissed the Misc. Case No. 02 of 2005 holding that the delay in filing the Misc. Case by the petitioner by filing the restoration application has not been explained satisfactorily.

(3.) AT the outset, I would like to reproduce the concluding portion of the impugned order on the basis of which the Court below rejected the restoration application. The relevant portion of the impugned order is quoted herein below: On perusal of the evidence of O.P. No. 1 it is found that he admits that the petitioner shifted to Ranchi in the year 2004. On perusal of the exhibited documents on behalf of the petitioner, il is also found that alter April 2001 there is no document filed by the petitioner for showing that either he or his wife had fallen ill alter April 2001 and till January 2002. The probate case was admittedly dismissed on 21.9.2001 and AW 1 has stated in para 13 that no step was taken on behalf of the petitioner for last 10 dates and thereafter the probate case was dismissed. It is also found that after April 2001 till September 2004 there is no document showing illness of the petitioner or his wife. Exts. 4, 5 and 6 relate to October 2004 and are in connection with wife of the petitioner, it is also found that after October 2004 there is no document showing illness of the petitioner or his wife. Here it is also important to remember that in the miscellaneous petition the petitioner has not taken ground of illness of petitioner's wife. Only evidence has been led. Therefore, the evidence regarding illness of petitioner's wife and her examination at different places by the doctors cannot be considered for adjudicating the misc. case. It is also an admitted fact that after 1995 this petitioner has not appeared physically in the Court. It Is also to remember that there is no document showing petitioner illness in September 2001 and onwards. So the plea of illness for not taking proper steps and not remaining vigilant and not remaining in contact with his lawyer cannot he accepted. The delay made in filing the misc. case is also of about more than 4 years. The condonation of delay made in the course of admission of misc. case was for limited purpose and the cause of not filing the misc. case within the period of limitation is still a matter of inquiry. Thus, the default made in probate case resulting in its dismissal and the delay made in filing the misc. case by the petitioner have not been explained satisfactorily. Even no case of illness of the petitioner or his wife during the period from May 2001 to September 2004 and November and December has been made out. Regarding limitation it is also noticeable that within 30 days only this misc. case was to be filed after the order of dismissal of the probate case. Considering the aforesaid finding, it must be observed that there is no ground for allowing the Misc. case. Accordingly, this Misc. case is dismissed on merit.