Smt. Anita Jerath and another vs Mrs. Pushpawati Jerath and another

J.V. Gupta, J.—This petition is directed against the order of the Senior Sub Judge, Faridabad, dated February 3, 1988, whereby he refused to extend the time for payment of cost and thus to recall his earlier order dismissing the application for succession certificate u/s 372 of the Indian Succession Act, 1925 u/s 35-B of the CPC for non-payment of costs vide order dated 24th August, 1987.

The Petitioners filed an application u/s 372 of the Indian Succession Act for the grant of succession certificate with respect to a sum of Rs. 40,000/- which was payable to the deceased Nirmal Parkash Jerath on account of the provident Fund, Gratuity, bonus etc. The said application was filed on May 4, 1983. This was being opposed by the mother-in-law of the Petitioners as well as her brother-in-law. Issue was framed and the Petitioners were directed to lead evidence. However, on August 24, 1987, the evidence of the Petitioners was not present and the case was earlier adjourned on payment of Rs. 35/- as costs. Further adjournment was sought for production of evidence on payment of costs. This was not allowed by the learned Sub Judge and the petition was dismissed u/s 35-B, Code of Civil Procedure.

Later on when an application was filed for recalling the said order and extending the time for payment of costs, the same was declined by the impugned order. According to the learned Counsel, the costs were paid to the counsel for the Respondent but he failed to be present at the time of hearing and therefore, the Court found that the costs were not paid.

Moreover, argued the learned Counsel, the provisions of Section 35-B, Code of Civil Procedure, did not apply to the proceedings under the Indian Succession Act.

After hearing the learned Counsel for the Petitioner, I am of the considered view that the whole approach of the learned Senior Sub-Judge, Faridabad, in this behalf was wholly wrong, illegal and misconceived. The application for succession certificate could not be dismissed u/s 35-B as such. In any case, when the costs were said to have been paid to the counsel for the Respondents, a further date should have been given by the trial Court. It has caused failure of justice by not recalling the said order. Consequently, this revision petition succeeds. Both orders i.e. the impugned order dated February 3, 1988 as well as the order dated August 24, 1987 are set aside on payment of Rs. 100/- as costs.

The parties are directed to appear in the Court of Senior Sub-Judge, Faridabad on August 23, 1989 for further proceedings in accordance with law on payment of Rs. 100/- as costs.

Since the application has been filed in the year 1983, it is directed that the parties will lead their evidence at their own responsibility for which one opportunity will be given to each party.