Calcutta High Court (Appellete Side)
Sri Partha Kumar Adhikari vs The Controller on 21 March, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
IN THE HIGH COURT AT CALCUTTA
21-03-2017Civil Revisional Jurisdiction Subrata . C.O.No.2376 of 2016 Sri Partha Kumar Adhikari
-vs-
The Controller, North 24 Parganas
Mr. Kamal Chakraborty
Mr. Udayan Roy ...for the petitioner
Heard Mr Chakraborty assisted by Mr Roy
representing the petitioner.
The revisional application under Article 227 of the Constitution is directed against Order No.69 dated March 22, 2016 passed by learned District Delegate at Barasat - who is at the station also as the learned Civil Judge (Senior Division), First Court at Barasat, North 24-Parganas - in Misc. Case No.367 of 2006 (Probate).
Perused the materials on record.
One will was said to have been executed by one Gour Mohan Adhikari in favour of his only son Sri Ajit Adhikari. After demise of Gour Mohan Adhikari, it was presented before the court of learned District Delegate at Barasat seeking probate. During pendency of that probate proceeding, letters of administration was opted by his heirs after the death of the executor-cum-legatee Ajit Adhikari, since deceased.
By the impugned Order No.69 dated March 22, 2016 2 learned District Delegate rejected an application dated September 14, 2015 directing the petitioner to take steps. This court is apprised of that under Order No.4 dated April 26, 2002 maximum court fees to the tune of `10,000 were deposited by the then petitioner on September 27, 2002. On completion of the recourse of general and special citations and there being no opposition raised from any corner, the miscellaneous case was taken up for hearing by learned District Delegate on September 20, 2003, but it was not concluded as a consequence of tendering one amendment application.
The then presiding officer by Order No.22 and Order No.23 dated July 1, 2005 and September 30, 2005 respectively took note of lying of the case in part-heard stage, and again after hearing in part it was deferred for further hearing with the observation that the will was supposed to be proved in accordance with law. By Order No.54 dated November 29, 2012 the then presiding officer after examining PW3 also took note about already deposit of `10,000 by the petitioner, nonetheless the case was fixed by him for hearing on court fee matter. Meanwhile due to non- taking of steps the case was dismissed for non-prosecution which was again restored by an order dated August 17, 2013.
However, though by Order No.58 dated March 4, 2014 learned District Delegate recorded the date of death of the executor-cum-legatee Ajit Adhikari allowing his heirs to continue with the letters of administration instead of probate, but Misc. Case No.367 of 2006 by an order dated 3 April 28, 2015 was allowed ex parte by directing to issue the probate certificate curiously "in favour of Sri Ajit Adhikari" though he was no more on that date, and the letters of administration was already in action at the instance of his legal heirs.
The unfortunate further antecedents did not spare the tail end of the Misc case proceeding. Because despite deposit of maximum court fees as indicated above, taking it granted as not paid, the petition dated September 14, 2015 by which grant of letters of administration was sought for was refused. It is obvious that a court may pass wrong order which is subject to be tested in higher forum. But this court virtually has no language to explain as to in which category such mode of disposal of the Misc case or dealing with the application under reference would be captioned.
Taking note of all such chequered history and harassment of the petitioner, not due to passing a wrong order, but only due to laches and negligence of the presiding officer dealing with the matter, instead of keeping the revisional application alive for any more reason, I am inclined to direct learned District Delegate to rectify at once within a period not later than fifteen days from the date of communication of this order (i) Order No.63 dated April 24, 2015 which was recorded directing to issue probate certificate in favour of Ajit Adhikari though he died on January 14, 2013; and (ii) recall Order No.69 in view of already deposit of the maximum court fees of `10,000 vide his Order No.54 and also Order No.7, and to dispose of the 4 Misc case finally granting letters of administration, if the same is found otherwise fit and proper coupled with legal evidence.
This compliance shall have to be made by giving special berth to this Misc case within fifteen days as indicated above and the compliance report to be sent to learned Registrar (Inspection-I), Appellate Side, High Court, Calcutta.
Learned Registrar (Inspection-I), Appellate Side, High Court, Calcutta, in turn, shall lay the said compliance report before this Bench which thereafter shall find place in the record only as a mere formality, provided the compliance be found in order.
With these observations, the revisional application is disposed of.
The department of this court is directed to forthwith communicate this order to learned District Delegate at Barasat taking up Misc. Case No.367 of 2006 (Probate) for necessary action and also a copy of this order to the learned Registrar (Inspection-I), Appellate Side, High Court.
Certified photostat copy of this order, if applied for, shall be given to the parties.
(Mir Dara Sheko, J) 5