02.09.2026 Sl. No.: 20 Court No.8 BM Calcutta High Court In the Circuit Bench at Jalpaiguri Appellate Side C.O. 120 of 2026 SHUKLA@SUKLA BOSE VS SUBRATA DAS AND ANR Ms. Rima Sarkar ... for the petitioner Mr. Biswajit Moitra ... for the opposite parties 1. Affidavit of service filed by the petitioner be kept with the record. 2. Learned counsel representing the petitioner submits that in the Probate proceeding which has given rise to the present application the petitioner being daughter of the testator had been contesting the Probate proceeding. 3. During continuation of the probate proceeding the learned counsel representing the petitioner lost his mother on 2nd March, 2025 as such could not represented the petitioner. She has further submitted that the petitioner herself had fallen ill as such she could not assist the learned counsel representing her. 4. Learned counsel further submits that the petitioner had been diligent to contest the Probate proceeding in spite of being an aged lady. 5. Learned counsel representing the petitioner while placing the impugned order dated 10.07.2026 has 2 submitted that the trial court has mentioned in the impugned order that on 27.11.2024 PW-1 had tendered his examination-in-chief and the opposite party Sukhla Bose was absent without step and despite the opposite party remaining absent the court provided opportunity to cross examine PW-1 on the next date i.e. 31.3.2025. 6. Learned counsel has further submitted that on 3rd March, 2025, it was fixed for further evidence and just prior to that date i.e. on 2nd March, 2025, the learned counsel lost his mother as such the petitioner remained unrepresented. She has further submitted that on the 21st November, 2025 the petitioner herein appeared before the trial Court and filed the application under Order IX Rule 7 of the Code of Civil Procedure read with Section 151 of the said Code for setting aside the order of ex-parte dated 3rd March, 2025. During his exhaustive argument the learned counsel stressed upon the point that having genuine reasons which prevented her from appearing and being represented, which have been narrated in the application under Order IX Rule 7, the petitioner has been compelled to file the said application and the trial court has not considered those reasons or issues which have been faced by the petitioner and has not shown any lenient view, on the contrary has taken stringent measure by rejecting the application under Order IX Rule 7 of the Code of Civil Procedure. 3 7. Learned counsel has further submitted that the Hon’ble Apex Court has time and again stressed on the point that liberal view is to be taken as regards setting aside of ex-parte order and Order IX Rule 7 provides the Court power of putting to terms the defendant assigning costs for non-appearance and setting aside the ex-parte order. 8. The learned counsel has relied upon an authority of the Hon’ble Apex Court passed in the case between Vijay Kumar Madan and Others. vs. R. N. Gupta Technical Education Society and Others reported in (2002) 5 SCC 30. 9. Banking upon the aforesaid submission the learned counsel has submitted that the learned trial Judge should have allowed the application under Order IX Rule 7 and allowed the petitioner to contest the Probate proceeding. 10. On the contrary the learned counsel representing the opposite parties, first of all highlighted that not only a single learned Advocate was representing the petitioner there were three other learned advocates representing the petitioner. He has emphasised that if any one learned advocate had problem then what prevented the other three learned advocates from representing the petitioner and if the petitioner had been represented then this situation would not have arisen. Secondly, the learned counsel referring to the earlier 4 orders of the year 2024 has submitted that earlier also the petitioner was not being represented and ultimately the learned trial Judge was pleased to proceed with the Probate proceeding ex-parte and has further submitted that the learned trial Judge has been correct enough in passing the order rejecting the prayer under Order IX Rule 7 of CPC. 11. From the contention of the learned counsels representing the petitioner and the opposite parties, it transpires that the lis involves a Probate proceeding in respect of a Will executed by the father of the petitioner and the opposite parties. The petitioner being daughter of the testator and the sister of the opposite parties has objected to the grant of probate and has entered appearance as such the Probate proceeding has become contentious. 12. It also transpires that a date i.e. 3rd March, 2025 was fixed in the Probate proceeding for cross examination of PW-1 and in default it was to be heard ex-parte. 13. It also transpires that just on 2nd March, 2025 a learned advocate representing the petitioner has lost his mother and the ground for non-representation on behalf of the petitioner is a cogent one and it is also fact that at that relevant point of time evidence of P.W. 1 was being taken up. 5 14. It is also fact that the Hon’ble Apex court has time and again and also through the judgment relied upon by the learned counsel representing the petitioner that is Vijay Kumar Madan & Ors. (Supra), the Hon’ble Apex Court has opined that under Order IX Rule 7 of the Civil Procedure Code Courts have the jurisdiction while setting aside the ex parte order to impose costs and also put the defendant/applicant on terms. In this context, Order IX Rule 7 has been laid down which is as follows: “7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance- Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” 15. Thus, in accordance with the view of the Hon’ble Apex court, this Court is of the view that there being death of the mother of a learned Advocate representing the petitioner on a day just prior to the day of recording of evidence, there has been a cogent ground for non representation. As the probate proceeding is still now in the peremptory hearing stage, as such, this court is of the view that the impugned order dated 10.07.2026 passed by the Learned Additional District Judge, Fast Track Court, Siliguri in O.C(Probate) Case No.16 of 2023 is required to be interfered with. The order rejecting the prayer for recalling of the order of ex-parte hearing 6 against the petitioner is set aside, subject to payment of cost of Rs.10,000/-. The petitioner is allowed to take part in the proceeding from the stage she last represented. ( Supratim Bhattacharya, J. )