- (1.) This is an appeal by Defendant No. 1 and is directed against an order of Mr. P.C. Roy Choudhury, learned subordinate judge, 3rd Additional Court, Alipore, district 24-Pargands, dated July 3, 1952.
(2.) The facts which have given rise to this appeal are as follows: The Plaintiff Respondent made an application for the grant of a probate to the will and testament of one Bimal Behary Sen, deceased. The proceedings having become contentious, they were registered as a suit being Suit No. 22 of 1951 by an order of the Court, dated August 14, 1950. Defendant No. 1 who is the Appellant in this Court filed a written statement on April 6, 1951. On June 11, 1951, the Plaintiff filed certain documents as per list with a petition for keeping the same in safe custody. The court thereupon directed the documents to be kept in safe custody with the nazir of the court. From the note made in the margin it appears that the documents were received in a sealed box. The endorsement is dated June 12, 1951. Nothing further appears to have been done by Defendant No. 1. It appears from the order, dated January 4, 1952, that Defendant No. 1 did not file any documents nor did he taken any steps under Orders XI, XII and XIII of the Code of Civil Procedure. An application made by him for further time to file documents or take steps was rejected as frivolous. The suit was adjourned to March 6, 1952, for peremptory hearing. This order was made by Mr. B.C. Nandi, learned subordinate judge then in charge of the court. It appears from the Order sheet that the peremptory date for hearing was shifted from time to time and it was finally shifted to June 18, 1952. On May 21, 1952, Defendant No. 1 prayed for permission to inspect the documents filed by the Plaintiff. The successor, learned subordinate judge Mr. P.C. Roy Choudhury, thereupon, after hearing the learned pleaders, made an order to the following effect: "Inspection of the documents to be made "in the presence of the lawyers of the parties and the sheristadar "of the court." On June 18, 1952, both parties filed hajiras. The court was, however, engaged in a Sessions case and the suit was adjourned to July 14, 1952, for peremptory hearing, On July 3, 1952, the Appellant filed an unverified petition under Order XI, Rule 21 of the Code of Civil Procedure. The allegations made in the petition may be summarised as follows: That on June 13, 1952, Mr. R. M. Chatterji, learned pleader for the Appellant, served on Mr. B.C. Rakshit, pleader for the Plaintiff Respondent, a notice for permitting inspection on June 16, 1952. Mr. Rakshit replied to say that his client lived in Rishra and the notice was much too short. Thereafter on June 25. 1952, another letter was addressed by Mr. Chatterji stating that he was ready for inspecting the record and enquiring when it would suit Mr. Rakshit to have inspection of the documents. Mr. Rakshit replied to say that the date was fixed provisionally and that he could not contact his client in the meantime. Later on, it is the allegation of the Appellant that the Plaintiff's pleader (Mr. Rakshit) assured that inspection would be held on June 28, 1952. On that date Mr. Chatterji wrote to Mr. Rakshit stating that Mr. Chatterji and Mr. Ghose, a learned advocate of this Court, were present in the record room. The letter also mentioned that Mr. Rakshit was present with his client but did not allow inspection. To this letter a reply was given by Mr. Rakshit to the following effect: As you insist on the advocate inspecting the documents, no inspection can be allowed in view of the relevant Orders of the Code of Civil Procedure and the rules of the High Court, which do not admit of such inspection.
(3.) The Appellant accordingly prayed that the result of the action on the part of the Plaintiff had caused prejudice and that the Plaintiff was resorting to delaying tactics. Defendant No. 1 (Appellant) prayed for dismissal of the suit for want of prosecution.;