Tapati Pal vs Uma Das

The present application under Article 227 of the Constitution of India has been taken out by the defendant in a contentious probate proceeding. Such

probate proceeding having been dismissed for default, the opposite party took out an application under Order IX Rule 9 of the Code of Civil

Procedure, which was allowed by the impugned order dated August 23, 2017.

Learned counsel for the petitioner argues that allowing the said application for restoration means lending credence to the allegations made against the

learned advocate appearing for the opposite party previously in the court below. Such allegations having not being proved, the application ought to

have been dismissed.

Secondly, it is pointed out that despite having found that the opposite party was at fault, the trial judge merely relied on the premise that the last wish of

the deceased testator ought to be honoured and on the advance age of the opposite party, in allowing the application. Such considerations, according to

learned counsel for the petitioner, are not valid in law for the purpose of allowing a restoration application.

Learned senior advocate appearing for the opposite party controverts such arguments and submits that previously an application for condonation of

delay in filing the application under Order IX Rule 9 of the Code was also allowed on contest, upon saddling the opposite party with costs. Such costs

were, in fact, accepted by the petitioner, thereby conceding to the finality of such order.

Learned senior advocate submits that the ground taken in such condonation application was identical with the ground taken in the application under

Order IX Rule 9 of the Code and as such, there is an aura of finality to the said issue.

In reply, learned counsel for the petitioners submits that the scope of adjudication in an application for condonation is confined to the period before

filing of the application under Order IX Rule 9 of the Code and cannot be equated with the yardsticks for deciding the latter application. Hearing both

sides, this Court finds from the impugned order that the trial court adopted a legally settled approach to the matter. It is trite that the last wish of a

person has to be honoured by a probate court and the endeavour of the court will be in that direction, of course, subject to due execution and

attestation of the Will being proved.

Inbuilt in the consideration of the trial court was the fact that whatever judgment would be passed finally in the probate proceeding would operate as a

judgment in rem and in such matters the individual faults of the parties concerned sometimes pale into insignificance in the context of such larger

issue. Considering such larger issue, the trial court took a lenient view in the matter and allowed the application under Order IX Rule 9 of the Code.

Such lenient view is also sanctioned by well settled principles of law which hold the field at present.

As such, the impugned order does not justify any interference by this Court under Article 227 of the Constitution of India. Accordingly, C. O. No.

1060 of 2018 is dismissed on contest without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to

the parties upon compliance with the requisite formalities.