- (1.) CHALLENGE in this revisional application under Article 227 of the Constitution is to order no.51 dated May 18, 2011 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in O.C. Suit No.11/2007. By the impugned order, the learned Judge rejected a petition filed under Section 151 of the Code of Civil Procedure by the petitioners, being the defendants in the suit, seeking recall of order no.50 dated April 19, 2011. The said order proceeded to allow a petition filed by the plaintiff/opposite party ex parte with the observation that I find no legal bar to make the will in question exhibited as sought for.
(2.) ONE Haran Chandra Nag (hereafter the deceased) executed a will dated February 20, 1993. He died on January 19, 1995 a bachelor, leaving behind him his two nephews, the petitioners, as his heirs. The opposite party, the executor of the will, thereafter filed an application under Section 276 of the Indian Succession Act, 1925 for grant of probate. The petitioners opposed the application contending, inter alia, that the opposite party had no locus standi to pray for grant of probate since the alleged will was not executed by the deceased and hence question of he being appointed executor does not arise. It was further contended that the alleged will was a forged document and the application had been filed to cheat and/or deprive the petitioners, upon whom the entire properties of the deceased had devolved by operation of law. The probate proceedings thus became contentious. Before the learned Judge, the witnesses on behalf of the opposite party testified in due course of time. The witnesses included, inter alia, one of the attesting witnesses, the advocate who drafted the will and the opposite party himself. On or about September 21, 2010, the opposite party filed an application under Order XVIII Rule 17 of the Code. It was averred therein that due to bonafide mistake, the last will and testament of Haran Chandra Nag was not exhibited and, accordingly, a prayer was made to recall Dr. Satyabrata Mukherjee, one of the attesting witnesses (PW 2), to prove the will. However, on February 2, 2011, the said application was rejected as not pressed. Immediately thereafter, the opposite party filed an application praying for an order for marking and exhibiting the will dated February 20, 1993. It was contended therein that PW 2 in course of examination-in-chief had identified the WILL including his signature and the signature was marked as Exhibit-15/1. In cross-examination, it was the testimony of PW 2 that he was present at the time of execution of the will and that Haran Babu put his signature in the WILL in my presence. Reference was also made to the testimony of PW 3, Mr. Premangshu Chatterjee, the draftsman of the will, who testified that Haran Chandra Nag put his signature both in Bengali and in English in the WILL in my presence and in the presence of the other witnesses. The petitioners filed an objection to such application. It was their specific case that the said application is misconceived and not maintainable in law. They contended that there was no provision in the Evidence Act, 1872 entitling a party to the lis to pray for an order for marking an unexhibited document as an exhibit in the absence of proper, cogent and corroborative evidence. It was further contended that in the absence of specific evidence proving the will, the same cannot be exhibited.
(3.) IN due course of time, the Presiding Officer of the 10th Bench retired. The case record along with the application filed by the opposite party was placed before the learned Judge-in-charge of the 10th Bench on March 15, 2011. However, since the Judge-in-charge was busy with his own files, hearing of the application was adjourned till April 1, 2011. On that day too, hearing could not progress since the Judge-in-charge was again busy with his own files and April 5, 2011 was fixed as the next date. On April 5, 2011 too, hearing was adjourned till April 19, 2011 owing to the same reason for which hearing had been adjourned previously. On April 19, 2011, the learned advocate for the petitioners, it is alleged, was present in the Court of the learned Judge-in-charge upto 2.30 p.m. but the application had not been taken up for hearing. He had been to another Court for attending some urgent case carrying an impression that the application would not be heard for want of time. At about 3.30 p.m., he visited the Court of the learned Judge-in-charge to attend another matter that was called on when he came to learn that the said application had been allowed ex parte. Considering the evidence of P.W. 2 in particular, the learned Judge passed an order directing that the will in question be marked as Ext.15 and fixed May 18, 2011 for evidence of the petitioners.;