Smti. M. Damayanti v. Smti. S. Kederamma And 03 ORS.
IN THE HIGH COUR AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
MA/10/2021 In WP 268/2019 IA No: CAN/1/2021 Smt. M. Damayanti ... Appellant Vs.
Smt. S.Kederamma & 03 others ... Respondents Ms. A.S. Zinu, Advocate ... for the appellant Mr. Krishna Rao, Advocate ... for the Administration Mr. Ananda Halder, Advocate ... for the respondent No.1 Mrs. Anjili Nag, Advocate ... Mediator November 9, 2021 [SR] Item No.4 The learned Mediator Mrs. Anjili Nag, has filed report. She has also taken the trouble to appear before this Court and communicating the result of the mediation. It is submitted that the mediation has failed. The report of the mediator is taken on record. The Court records the appreciation for the efforts put in by Mrs. Anjili Nag in trying to mediate between the parties. By consent of the parties, the appeal and the application are taken up for hearing for final disposal.
The appeal is directed against an order dated 17th March, 2021 passed by the Single Bench in W.P. No. 005 of 2021. By the impugned order, the first wife of late M.Kurma Rao i.e. S. Kederamma, writ petitioner, who is the principal respondent here has been allowed to receive pension.
The appellant claims to be the lawfully wedded second wife of the deceased M. Kurma Rao. The deceased was an employee of the Department of Environment and Forests of the Andaman and Nicobar Islands, Van Sadan, Haddo, Port Blair. Upon the death of the said M.Kurma Rao, the family of the deceased became entitled to pension.
It also transpires from the records that the first wife - respondent since after divorce with the deceased employee in the year 1984, started living with her father. The said first wiferespondent also obtained employment on companionate ground instead and in place of her father upon his death. The deceased M. Kurma Rao is said to have struck off of the name of the first wife Kederamma and recorded the appellant as beneficiary of pension in the records of his employment. The gratuity, Provident Fund and other benefits of the deceased
employee Kurma Rao are stated to have been received and enjoyed by the appellant. A succession certificate has also been obtained by the appellant in respect of the pension, being the only asset of the deceased.
The facts canvassed by the appellant against the first wife Kederamma are disputed by her counsel.
It is submitted that the appellant did not use affidavit-inopposition to the writ petition in the Court below. It is also submitted that the appellant did not put forward her case effectively before the authority who granted the succession certificate. The authority in proceeding under section 373 of the Indian Succession Act held that the respondent Kederamma and her sons are also the legal heirs of the deceased M. Kurma Rao. This Court is of the view that the appellant should have defended the case effectively before the Single Bench. This Court is unable to countenance the allegations made by the appellant against her advocate in the Court below. It is the appellant who is the litigant and not her advocate.
Be that as it may, this Court is of the view that in the interests of justice, that the appellant should be allowed to file an affidavit-in-opposition in the Court below and the matter should be re-visited by the Single Bench based on the above. Since admittedly, there is gross negligence and latches on behalf of the appellant in not filing the affidavit-in-opposition or placing her case for which the respondents cannot be blamed, costs assessed at Rs.7500/- each shall be payable by the appellant to the first wife S.Kederamma and the respondent employer.
Upon payment of such costs within a period of seven days from date, the appellant shall be entitled to file affidavit-inopposition to the writ petition being WP/005/2021 within a period of two weeks from date. The respondents in the writ petition shall be entitled to file affidavit-in-reply within a period of two weeks thereafter.
The parties shall be entitled to mention the matter for hearing before the learned Single Judge after exchange of affidavits.
It is made clear that in default of payment of costs within the stipulated period to the respondents, the appeal shall stand automatically dismissed and the impugned order shall become final and binding on the parties.
If the writ petition reaches the hearing stage, the Single Bench would proceed to determine the matter uninfluenced by any observations made by this Court in the instant appeal.
The appeal and the applications stand disposed of. (Rajasekhar Mantha, J. ) ( Amrita Sinha, J. )