Sushila Devi @ Sushila Kunwar vs Anil Kumar Singh

Sanjay Kumar Dwivedi, J

Heard the learned counsel appearing on behalf of the petitioners as well as the learned counsel appearing on behalf of the Opposite Parties.

This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 12.01.2024 passed by the learned Principal District Judge, Palamau, at Daltonganj in Original Suit No.11 of 2022 by which the petition filed by the plaintiffs for recalling the order dated 19.9.2023 has been allowed.

Mr. Amar Kumar Sinha, the learned counsel for the petitioner submits that the Opposite parties has instituted Original Suit No.11 of 2022 before the Principal District Judge, Palamau, at Daltonganj under Section 278 of Indian Succession Act, 1925 for grant of probate with respect to WILL dated 11.8.2004 alleged to be executed by Ramdhyan Singh in favour of the plaintiffs with respect to the suit property. He submits that the said probate case has been proceeded and one witness in chief was filed by the O.Ps/plaintiffs who has not turned up for cross examination and in view of that, the O.P./plaintiffs have filed a petition to expunge the witness namely Birendra Kumar Singh which was allowed by the order dated 08.06.2023. He submits that in the petition filed before the learned court the prayer is made to recall the order dated 19.9.2023 and there is no such order on that day. He submits that the WILL has already been proved including the signature and without any cogent reason the said petition has been allowed by the learned court.

Learned counsel for the O.Ps has opposed the prayer and submits that the learned court has rightly passed the order and he submits that the right of cross-examination is always there to the petitioner/defendant and in view of that the learned court has rightly passed the order.

From the records, it transpires that the petition filed by the petitioner for examination of Birendra Kumar Singh since has been exempted by the learned court by order dated 08.06.2023 and the order dated 19.9.2023 speaks of only filing of the examination in chief of Birendra Kumar Singh which clearly suggest that in absence of recalling the order 08.06.2023 whereby expunsion of the examination of Birendra Kumar Singh has been allowed, the said petition has been allowed by the learned court and there is no such order of 19.9.2023 of expunsion of Birendra Kumar Singh and without any leave of the court, it appears that fresh examination in chief a petition has been filed on behalf of Birendra Kumar Singh which has been allowed by the learned court which is not in accordance with law, and as such, the order dated 12.01.2024 passed by the learned Principal District Judge, Palamau, at Daltonganj in Original Suit No.11 of 2022, is set-aside.

The matter is remitted back to the learned court concerned to pass a fresh order after providing opportunity of hearing to both the sides.

This petition is allowed, in the above terms, and disposed of.

Pending petition, if any, also stands disposed of, accordingly.