In The Goods Of Pushpa Bose (Decd.) And Ratna Roy (Nee Bahuguna vs Adhiraj Bose

The Court : The first ground urged cannot be looked into, though the appellant will have leave to urge such ground before the Court of the first instance. It is the appellant's contention that the appellant's application for revocation of a probate was dismissed ex parte by discussing the merits of the matter. Ordinarily, such a course of action is not adopted since the Court would generally dismiss a petition if the petitioner is not represented at the time of hearing but the Court will not enter into the merits of the matter. However, if a matter has earlier been heard and the petitioner is not represented at a subsequent hearing, the Court is free to dismiss the petition on merits since the Court had earlier heard the matter and the merits may have been the subject-matter of such earlier hearing.

According to the appellant, the petition for revocation of probate appeared on a Friday, which is not the day for taking up such applications in the Court of the first instance. It is also acknowledged that the list on a previous day or the relevant date indicated that the petition would be taken up on the relevant Friday, but advocates for the appellant had missed such note in the cause list.

The order impugned begins with this as its first sentence:

"Although this application is appearing as "Heard in part" but the applicant is not represented. ..."

Thus, it is evident that the relevant petition had been heard earlier on merits. In such circumstances, the Court could dwell on the merits of the matter while dismissing the same.

It is the further case of the appellant that the affidavit-in-reply which had been prepared and a copy whereof had been served on the propounder had not been filed in Court and, thus, the Court took the allegations contained in the affidavit-in-opposition to be unrebutted. Since it is evident that the appellant was not represented before Court and no affidavit-in-reply was filed till September 17, 2018, the Court was well within its rights to observe that the averments in the affidavit-in-opposition remained uncontroverted.

This being the position, the order impugned cannot be challenged on the ground that the matter had not been heard prior to September 17, 2018 or on the ground that the merits of the matter had been addressed though the petitioner was not there to press the petition nor even on the ground that a copy of the affidavit-in-reply may have been served to the respondents herein but no copy had been filed in Court.

On the basis of the grounds available to the appellant at this stage, the order impugned cannot be interfered with, though the appellant is left free to pursue any other remedy that the appellant may have before the Court of the first instance.

APO No.353 of 2018 and GA No.3026 of 2018 are disposed of.

There will be no order as to costs.