District – Jalpaiguri.

In the Court of Learned District Judge at, Jalpaiguri.

Mise case – OF 2016 ( /2016).

Arrising O.C. Suit No. 02 OF 2013.
Misc. Judl. Porbate No- 51 of 2012

SMT, SABITA SAHA; Wife of Late, Khitish

Chandra Saha; Resident of Sahapara;
P.O. & P.S.- Rajganj, Dist. Jalpaiguri.
….. Petitioner.
= VS =
1) SRI, BIKASH SAHA; Son of Late,
Khitish Chandra Saha;
2) SRI, PRONOB SAHA @ Ashoke; Son of
Late, Khitish Chandra Saha; both are
resident of Sahapara; P.O. & P.S.-
Rajganj, Dist. Jalpaiguri. Pin Code
No- 735 134
3) SMT, SRITI SAHA @ CHANDANA
SAHA; Wife of Late, Madhu Sudhan
Saha; Daughter of Late, Khitish Ch.
Saha; resident of B.B.D Coloney,
Temple Road, Mallaguri, P.O. & P.S.
Prodhan Nagar, Ward No- 2 under
Siliguri Municipal Corporation,
District- Darjeeling, Pin Code No- 734
003;
4) SMT, LIPI SARKAR (SAHA) @
BANDANA; Wife of Bhola Sarkar @
Bhulu;
5) SMT, ITI SAHA; Wife of Alok Saha @
Lablu; both are daughter of Late,
Khitish Ch. Saha both are resident of
Purba Bibekananda Polly, P.O.
Rabindra Sarani, P.S. Bhaktinagar,
District- Jalpaiguri.
6) SMT, PRITI SAHA; Wife of Joy Saha;
resident of Shaktigarh, Ashoke Nagar,
7 No Road, P.O. Court More; P.S.
Bhaktinagar; District- Jalpaiguri.
7) SMT, BITHI SAHA; Daughter of Late,
Khitish Chandra Saha; resident of
Sahapara; P.O. & P.S.- Rajganj, Dist.
Jalpaiguri;

…. Opposite parties.
 = 2 =

An application U/O – 9 Rule 9 read with

Section 151 of Civil Procedure Code.
==o==o==o==o==o==o==o==o==o==o==o==

The Petitioner above named,

Most Respectfully Sheweth:-

1. That the petitioner has filed the above referred application

under Section 276 of the Indian Succession Act for probate of
WILL dated- 13/08/2007 on- 16/05/2012.

2. That the Ld. Court was directed issue summon but till today
summon has not been served upon the opposite party No – d &
e. The others defendants/Opposite parties had appeared in the
said suit.

3. That on 22/03/2016 the Ld. Court was pleased to fixed to file

Show-cause and on that date petitioner could not appeared
before this Learned Court and had not file show-cause, due to
his illness.

4. That on- 22/03/2016 the learned Court was pleased enough to

pass an order to dismissed the present suit due to non taking
of proper steps.

5. That the petitioner is/was always ready and willing to proceed

with the above noted suit but the date on which the learned
court was pleased enough to pass an order for filing show-
cause on- 22/03/2016 was not communicated to him by the
concern Advocate and as a result of which prior to that date
the petitioner/ plaintiff of the instant case was not able to meet
with his conducting Advocate to narrate the actual facts so as
to help him to draft the present petition and to present the
same before the learned Court.
.........Contd....P/3.....
 = 3 =

6. That the learned Advocate for the petitioner had not inform the
date of the case and further did not inform that the suit has
been dismissed for defult.

7. That the learned Advocate of the petitioner did not

communicate any date of the instant case to the petitioner as a
result of which she became in dark regarding the fate of this
case. after search the court Cause list of the instant suit
petitioner Came to know the above facts on 02/08/2016 that
the above numbered suit has already been dismissed for
default and gathering the same he made contact with his
present lawyer and instructed him for drafting a petition for
setting aside the dismissal order dated- 22/03/2016 and
accordingly the instant petition has drafted and filed before
this learned Court.

8. That the petitioner of the instant suit has no latches in

gathering the dismissal order dated- 22/03/2016 but as the
dates of the O.C Suit No- 02/2013 (Misc Judl. Probate Case
NO- 51 of 2012) and also the petitioner due his illness could
not able to appear before this learned court on the date fixed
by the learned Court for filing show cause.

9. That the petitioner due to her illness and lack of information

could not taken any proper steps in time

10. That as the petitioner failed to file petition with time has filed a
petition under section 5 of the limitation act.

11. That the present petition is made bonafidy and for the interest
of natural justice.

…….Contd….P/4….
 = 4 =

Therefore, it is, accordingly prayed that Your Honour

would be king enough to admit this petition and on hearing the
instant petition please to set aside the dismissal order on-
22/03/2016 and to allow your Petitioner to proceed with the suit
for the interest of natural justice.

AND to pass such other order/orders as Your Honour may

deem fit and proper for the ends of justice.

AFFIDAVIT

I, SMT, SABITA SAHA , Wife of Late, Khitish Chandra Saha;

aged about- years; by faith- Hindu; resident of Sahapara;
P.O. & P.S. Rajganj; District- Jalpaiguri; do hereby solemnly
affirm state and declare as follows :-
01). That I am the petitioner of the above noted petition
under Order- 9 Rule- 9 Read with Section- 151 of Civil
Procedure Code and am well conversant with the facts and
circumstances of the instant case.
.... This is true to my knowledge.

02). That the statements made in foregoing paragraphs are

true to the best of my knowledge and belief and the rest is
my humble submission before this Ld. Court.

I sign this Affidavit on this ________th day of

September’ 2016 at Jalpaiguri.

___________________________
Declarent.
Identified by me,

Advocate, Jalpaiguri.
District – Jalpaiguri.
In the Court of Learned District Judge at, Jalpaiguri.

Mise case – OF 2016 ( /2016).

Arrising O.C. Suit No. 02 OF 2013.
Misc. Judl. Porbate No- 51 of 2012

SMT, SABITA SAHA;

….. Petitioner.
= VS =
SRI, BIKASH SAHA & Others;
…. Opposite parties.

An application Under Section 5 of the Limitation Act.

The defendant above named,
Most Respectfully Sheweth :-

1. That the petitioner has filed an application U/O – 9 rule 9

read with Sec. 151 of C. P. Code for setting aside the
dismissal order dated- 22/03/2016.

2. That on 22/03/2016 the Ld. Court was pleased to fixed

Show-cause filed by the petitioner and on that date
petitioner could not appeared before this Learned Court
and not to file show-cause, due to his illness.

3. That there are no latches on the part of the petitioner for

said exparty order.

4. That the petitioner could not came before this Learned

Court on the date of the case. Moreover, on 22/03/2016
petitioner was seriously ill, moreover could not know the
date.

.. Contd … P/2.
 = 2 =

5. That the delay for making petition caused due to the serious
illness of the petitioner and the said petition had no intension to
make any delay in lodging this said petition beyond the
statutory period.

6. That the situation is beyond the Court of the petitioner.

7. That it is pertinent to mentioned here that as the petitioner had

no knowledge about the date of hearing, show-cause etc could
not file petition or took steps on the date fixed by the Learned
Court the Learned Lawyer of the petitioner did not inform the
date of show-cause as well as the date of hearing of this probate
case.

8. That the petition has made delay for filing this said petition and
if the said delay will not be condoned then the petitioner would
be sustained serious loss and injury.

9. That as the petitioner was ill the petitioner could not file the
setting aside within time.

10.That the petition is made bonafide and for the ends of Justice.

In the aforesaid circumstances it is prayed

that your Honour would graciously be
pleased to condone the delay for filing the
petition U/O 9 Rule 9 of C. P. Code and set-
aside the exparte order for the ends of justice.

......Contd...P/3.... Affidavit....
= 3 =
 AFFIDAVIT

I, SMT, SABITA SAHA , Wife of Late, Khitish Chandra Saha;

aged about- years; by faith- Hindu; resident of Sahapara;
P.O. & P.S. Rajganj; District- Jalpaiguri; do hereby solemnly
affirm state and declare as follows :-

01). That I am the petitioner of the above noted petition

under Order- 9 Rule- 9 Read with Section- 151 of Civil
Procedure Code and am well conversant with the facts and
circumstances of the instant case.
.... This is true to my knowledge.

02). That the statements made in foregoing paragraphs are

true to the best of my knowledge and belief and the rest is
my humble submission before this Ld. Court.

I sign this Affidavit on this ________th day of

September’ 2016 at Jalpaiguri.

___________________________
Declarent.
Identified by me,

Advocate, Jalpaiguri.
IN THE COURT OF LD. CIVIL JUDGE (JUNIOR DIVISION) AT, JALPAIGURI

Misc case no 76 / 16

SMT, SABITA SAHA;

….. Petitioner.
= VS =
SRI, BIKASH SAHA & Others;
…. Opposite parties.
.

Examination-in-Chief by way on Affidavit

U/O – 18 rule 4 of C.P. Code filed by the
SMT . SABITA SAHA the petitioner

I, SMT, SABITA SAHA; Wife of Late, Khitish Chandra

Saha; Resident of Sahapara; P.O. & P.S.- Rajganj, Dist.
Jalpaiguri , aged about – years, by religion – Hindu . by
occupation – ,do hereby solemnly affirm and declare
as follows :-

1. I say and affirm that I am the petitioner of this case and am

conversant with the fact of the case and I am competent to
sworn this affidavit as evidence in chief.

.. This is true to my knowledge

2. I say and affirm that on 22/03/2016 the Ld. Court was

pleased to fixed Show-cause filed by me and on that
date I could not appeared before this Learned Court
and not to file show-cause, due to my illness.
.. This is true to my knowledge

3. That there are no latches on the part of the petitioner

for said exparty order.
.. This is true to my knowledge

4. That the petitioner could not came before this Learned

Court on the date of the case. Moreover, on
22/03/2016 petitioner was seriously ill, moreover could
not know the date.
Cont p/2
 =2=

5. I say and affirm that I am always ready and willing to

proceed with the above noted suit but the date on
which the learned court was pleased enough to pass an
order for filing show-cause on- 22/03/2016 was not
communicated to me by the concern Advocate and as a
result of which prior to that date I was not able to meet
with my conducting Advocate to narrate the actual
facts so as to help me to draft the present petition and
to present the same before the learned Court.
.. This is true to my knowledge
6. I say and affirm that the learned Advocate appointed by
me had not inform the date of the case and further did
not inform that the suit has been dismissed for default.
.. This is true to my knowledge
7. I say and affirm that the learned Advocate of me did not
communicate any date of the instant case to me as a
result of which she became in dark regarding the fate of
this case. after search the court Cause list of the
instant suit I Came to know the above facts on
02/08/2016 that the above numbered suit has already
been dismissed for default and gathering the same he
made contact with my present lawyer and instructed
him for drafting a petition for setting aside the
dismissal order dated- 22/03/2016 and accordingly the
instant petition has drafted and filed before this learned
Court.
.. This is true to my
knowledge

Cont p/3

=3=
8. I say and affirm that I have no latches in gathering the
dismissal order dated- 22/03/2016 but as the dates of
the O.C Suit No- 02/2013 (Misc Judl. Probate Case NO-
51 of 2012) and also I due to my illness could not able
to appear before this learned court on the date fixed by
the learned Court for filing show cause.
.. This is true to my knowledge
9. That it is pertinent to mentioned here that as I had no
knowledge about the date of hearing, show-cause etc could
not file petition or took steps on the date fixed by the Learned
Court the Learned Lawyer appointed by me did not inform
the date of show-cause as well as the date of hearing of this
probate case.
.. This is true to my knowledge
10. I say and affirm that I due to my illness and lack of
information could not taken any proper steps in time .
.. This is true to my knowledge
11.I have filed documents in a separate list for the purpose of
exhibit .

12.I pray decree as per prayer of my petition .

I say and affirm that the averments made in above all are true
to my knowledge and belief and I sign this Affidavit in chief on
this day of December 2016 at Jalpaiguri.

Deponent.
Identified by me,

Advocate, Jalpaiguri.