JUDGMENT
Bhaskar Bhattacharya, J.
1. These two matters were taken up together as those are interlinked. C.O. No. 1566 of 2004 is at the instance of an applicant for grant of probate and is directed against Order No. 37 dated 9th September, 2003 and Order No. 38 dated 19th September, 2003 passed by the Additional District Judge, 2nd Court, Bankura in Judicial Misc. Case No. 2 of 2003 arising out of Probate Suit No. 4 of 1999. By Order No. 37 the learned Trial Judge allowed the application for restoration of the probate proceedings on payment of costs of Rs. 5,000/- to the respondents. By the subsequent Order No. 38, the Court rejected the application filed by the petitioner for reducing the said costs of Rs. 5,000/- and at the same time dismissed the Misc. Case No. 2 of 2003 for non-compliance of the earlier Order No. 37. The suo motu rule being C.R. 2272 of 2004 was issued by this Court calling upon the respondents to show-cause why earlier Order No. 34 dated 16th July, 2003 passed by the learned Trial Judge in Probate Suit No. 4 should not be set aside.
2. It appears from Order No. 34 dated 16th July, 2003 that on the date fixed for evidence of the respondents, the Court directed the applicant for grant of probate to deposit a sum of Rs. 48,400/- as Court-fees on the basis of valuation report submitted by the Collector. In view of such order, the petitioner filed an application praying for dismissal of the suit stating that as he had no capacity to pay that amount of Court-fees he was not willing to proceed with the probate application and further, he would not file such application for grant of probate in future. Considering such application, the Court dismissed the probate application for non-prosecution.
3. Subsequently, the petitioner filed an application for recalling that order alleging that he did not instruct his learned Advocate to file such application and due to bona fide mistake and miscommunication between the learned lawyer and the petitioner, such application was filed.
4. As indicated above, the learned Trial Judge by Order No. 37 allowed such application with condition of payment of costs of Rs. 5,000/- and subsequently by Order No. 38 rejected the further prayer of the petitioner for reduction of the costs and at the same time, dismissed the application for restoration on the ground of non-compliance of the order of deposit of the costs within time.
5. Being dissatisfied, the petitioner preferred the application under Article 227 of the Constitution of India. While the said revisional application was being heard, this Court issued the suo motu rule calling upon the respondents to show-cause why earlier Order No. 34 dated 16th July, 2003 as passed by the learned Trial Judge directing the petitioner to deposit Rs. 48,400/- as Court-fees during the pendency of the probate proceedings should not be set aside.
6. Both the matters were heard together. I, however, propose to take up the suo motu rule first.
7. According to the West Bengal Court-fees Act, an application for probate is filed initially with fixed Court-fees as provided in serial No. 9 of the Schedule II of the Act. However, according to the provision contained in serial No. 10 of Schedule I, if ultimately Court grants probate, in that event, the applicant for grant of probate, should pay further Court-fees at the rate prescribed therein according to the valuation of the subject-matter covered under the Will. If the probate application is unsuccessful, he is not required to pay such additional Court-fees on the basis of valuation. In the present case, the Court after accepting the report on valuation given by the Collector came to the conclusion that valuation of the property was Rs. 8,18,855/- and accordingly, directed the applicant to pay Rs. 48,400/- according to the amended provision of the serial No. 10 of the Schedule I to the West Bengal Court-fees Act.
8. In my view, the learned Trial Judge acted illegally and with material irregularity in demanding payment of such Court-fees when hearing of the probate application was going on and the Court did not decide to grant probate in favour of the applicant. It appears from records that there was miscommunication and misunderstanding between the petitioner and the learned Advocate, as a result, an application was filed for dismissal of the probate application as the petitioner was incapable of paying that amount at that stage.
9. In my opinion, in view of Order No. 34 passed by the learned Trial Judge which was otherwise patently illegal, all these complications had arisen. If the Court did not pass such illegal order, no such application would have been filed and there was also no necessity of praying for recall of that order and consequently, there was no justification of unnecessarily passing a direction for the costs of Rs. 5,000/- upon the petitioner.
10. I, therefore, find that Order No. 34 dated 16th July, 2003 directing payment of Rs. 48, 400/- at the time of hearing of the application for grant of probate, which was totally without jurisdiction, is the root of all the troubles. I, thus, set aside Order No. 34 dated 16th July, 2003 and hold that direction for payment of ad valorem Court-fees in terms of serial No. 10 of the Schedule I will arise only if ultimately, the Court decides to grant probate in favour of the applicant. As indicated above, if Order No. 34 was not passed there was no necessity of filing subsequent miscellaneous case for restoration of the proceedings and as such, there was no necessity of passing Order No. 37 and Order No. 38.
11. Thus, Order No. 34 dated 16th July, 2003, the subject-matter of the suo motu rule and the subsequent Order Nos. 37 and 38 which are subject-matters of the revisional application being C.O. No. 1566 of 2003 are all set aside. The learned Trial Judge is directed to proceed with the hearing suit from the stage as it existed on 16th July, 2003.
12. In the facts and circumstances, there will be however no, order as to costs.