1. In this writ petition, the petitioner is challenging the order dated 10th June, 2003, passed by the learned 6th Additional District Judge, Giridih, which is at Annexure 3 to the memo of petition, whereby, the application for probate being Probate Case No. 2 of 1996, has been dismissed for default, because of the absence of the lawyer as well as for the reason that the probate duty was not paid by the original applicant, as also the order dated 29th July, 2003, passed by the same very court, which is at Annexure 4 to the memo of petition, whereby, the application filed by the applicant for recalling the order dated 10 th June, 2003, has been dismissed.
2. I have heard learned counsel for the petitioner at length, who has submitted that looking to the order at Annexure 1 to the memo of petition which is dated 4th July, 2002, it appears in pursuance of the power, vested in the Committee vide Notification dated S.O. No.1207 dated 19th August, 1981, already exemption was given to the present petitioner from payment of probate fee. So far as absence of the lawyer is concerned, it is submitted by the learned counsel for the petitioner that no client should be punished, because of absenteeism of a lawyer and, therefore, Probate Case No. 2 of 1996 may be restored to its original file and let a direction be given to the learned trial court to dispose of the Probate Case No. 2 of 1996, as expeditiously as possible and practicable, preferably within the stipulated time.
3. Learned counsel for the State submitted that much time has been lapsed by now and looking to the fact that due to lethargic approach of the petitioner, the Probate Case was dismissed for default, it may not be restored to its original file and the writ petition, filed by the petitioner, may be dismissed.
4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order dated 10th July, 2003, passed by the learned 6th Additional District Judge, Giridih, in Probate Case No. 2 of 1996, as also the order dated 29th July 2003, passed by the same very court, which are at Annexure 3 and 4 respectively to the memo of petition, mainly for the following facts and reasons:
(I) It appears that the present petitioner is claiming ownership upon certain property by virtue of a will, executed in his favour, and, therefore, Probate Case No. 2 of 1996 was instituted by him before the trial court. (II) It further appears that an application was preferred by the original applicant of Probate Case No. 2 of 1996 before the District Legal Services Authority, Giridih, in pursuance of a Notification bearing S.O. No. 1207 dated 19th August, 1981, issued by the Government, which empowers the aforesaid Committee to exempt the persons from payment of court fee, who belong to Scheduled Caste, Scheduled Tribe, Landless persons and such other persons, whose annual income does not exceed Rs.10,000/-, who are eligible for legal aid in the entire State, in accordance with Section 3 of the Bihar Act 20 of 1977, The Court Fee (Bihar Amendment) Act, 1977. (III) It appears that in pursuance of the aforesaid notification, certificate of eligibility was given to the petitioner by the aforesaid Committee on 4th July, 2002, which exempts the present petitioner (original applicant in Probate Case No. 2 of 1996) from payment of court fee. This exemption certificate is at Annexure 1 to the memo of this petition. (IV) It appears that this aspect of the matter has not been appreciated by the learned trial court while passing the order dated 10th June, 2003. (V) It further appears that because of the absenteeism of the counsel for the petitioner, the Probate Case has been dismissed. It ought to have been kept in mind by the trial court that if the lawyer is absent, his client should not be punished, especially when the petitioner is a very poor person and his income is less than Rs.10,000/- per annum and who has been given certificate by the District Legal Services Authority, Giridih. When the lawyer is absent, his client should not get punishment and, therefore, I hereby give one more chance to the present petitioner, so that he can proceed ahead with his case i.e. Probate Case No. 2 of 1996 before the concerned trial court.
5. Though the respondent has been served with notice, it has not filed any counter affidavit. Nothing is controverted, as stated in the memo of petition.
6. As a cumulative of the aforesaid facts and reasons, both the orders at Annexure 3 and 4 dated 10th July, 2003 and 29th July, 2003 respectively, passed by the learned 6th Additional District Judge, Giridih, in Probate Case No. 2 of 1996, are hereby quashed and set aside. Probate Case No. 2 of 1996 is restored to its original file. The learned trial court will hear and dispose of the Probate Case as expeditiously as possible and practicable, preferably within a period of six months from the date of receipt of a copy of this order.
7. The writ petition is, accordingly, allowed and disposed of.