Achyutananda Chowdhury Vs. Salil Kumar Saha Poddar - Court Judgment

Excerpt:
the court :- it appears that this application has been filed for recalling of an order dated 21st january, 2000. it appears from the facts that the petitioner applied for revocation of probate which was granted by the court under section 263 of the indian succession act. on 6th november, 1997 the said matter was heard out by his lordship ajoy nath ray (as his lordship then was) and was dismissed on the ground that the application for revocation of probate is made by a rank outsider. being aggrieved an appeal was filed before the appeal court. on 29th november, 1999 the appeal was dismissed for default. the petitioner filed an application for recalling of the said order dated 29th november, 1999 and by an order dated 21st january, 2000 the division bench was pleased to recall the order dated 29th november, 1999 with a condition that subject to the payment of cost of rs.1000/- to be paid to the respondent within 2 weeks from the date of the order and if such cost is not paid the order shall cease to be operative. in these circumstances, the petitioner did not take any steps even to pay such cost. no step was taken by the petitioner till april, 2007. an application was filed for recalling of the said order dated 21st january, 2000 before the division bench and the said application was dismissed after hearing the parties. the said fact has been suppressed from this court in the instant application filed by the petitioner. the petitioner did not explain the delay since 2000 to 2007. thereafter an application was filed which was dismissed and the said fact is suppressed from this court and only it is pleaded in the petition that the petitioner for the first time came to know on 10th june, 2010 from the city civil court at calcutta that the application for restoration filed by them has been dismissed since no sufficient cause was shown. the petitioner in this petition did not explain the delay in making this application for recalling of the said order dated 21st january, 2000 nor pleaded that the application was filed and the said application was disposed of by the division bench refusing the prayer of the petitioner as has been made in the petition. from this facts it appears to us that the petitioner has tried to suppress the material facts and to get an order from this court which would be evident from the statements made in this petition. there is no sufficient cause has been shown even for recalling of the order on the contrary there are suppression of material fact which has been made in the petition. hence we do not find that it is a fit case where we can grant liberty to the petitioner and condone the delay. in fact the application for recalling of the said order has been dismissed earlier. therefore, this should be treated as an abuse of process of law. hence, we dismiss this application with costs assessed at 200 g.ms. . since no affidavit-in-opposition has been filed by the respondent, the allegations made in the petition are not admitted. all parties concerned are to act on a xerox signed copy of this order on the usual undertakings. urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
The Court :- It appears that this application has been filed for recalling of an order dated 21st January, 2000. It appears from the facts that the petitioner applied for revocation of probate which was granted by the Court under section 263 of the Indian Succession Act.

On 6th November, 1997 the said matter was heard out by His Lordship Ajoy Nath Ray (As His Lordship then was) and was dismissed on the ground that the application for revocation of probate is made by a rank outsider. Being aggrieved an appeal was filed before the Appeal Court. On 29th November, 1999 the appeal was dismissed for default.

The petitioner filed an application for recalling of the said order dated 29th November, 1999 and by an order dated 21st January, 2000 the Division Bench was pleased to recall the order dated 29th November, 1999 with a condition that subject to the payment of cost of Rs.1000/- to be paid to the respondent within 2 weeks from the date of the order and if such cost is not paid the order shall cease to be operative. In these circumstances, the petitioner did not take any steps even to pay such cost. No step was taken by the petitioner till April, 2007.

An application was filed for recalling of the said order dated 21st January, 2000 before the Division Bench and the said application was dismissed after hearing the parties.

The said fact has been suppressed from this Court in the instant application filed by the petitioner. The petitioner did not explain the delay since 2000 to 2007.

Thereafter an application was filed which was dismissed and the said fact is suppressed from this Court and only it is pleaded in the petition that the petitioner for the first time came to know on 10th June, 2010 from the City Civil Court at Calcutta that the application for restoration filed by them has been dismissed since no sufficient cause was shown. The petitioner in this petition did not explain the delay in making this application for recalling of the said order dated 21st January, 2000 nor pleaded that the application was filed and the said application was disposed of by the Division Bench refusing the prayer of the petitioner as has been made in the petition.

From this facts it appears to us that the petitioner has tried to suppress the material facts and to get an order from this Court which would be evident from the statements made in this petition. There is no sufficient cause has been shown even for recalling of the order on the contrary there are suppression of material fact which has been made in the petition. Hence we do not find that it is a fit case where we can grant liberty to the petitioner and condone the delay.

In fact the application for recalling of the said order has been dismissed earlier. Therefore, this should be treated as an abuse of process of law. Hence, we dismiss this application with costs assessed at 200 G.Ms. . Since no affidavit-in-opposition has been filed by the respondent, the allegations made in the petition are not admitted.

All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.