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2002 DIGILAW 1335 (MAD)

CT. Ramasamy v. SP. Kaveri Achi

2002-10-31

K.GOVINDARAJAN, S.JAGADEESAN

body2002
Judgment :- S.Jagadeesan, J. The appellant filed O.P.97 of 2001 for the issue of probate in respect of the Will executed by CT.RM.CT. Chidambaram Chettiar. On behalf of the respondent, her counsel filed vakalat on 23.7.2001. Thereafter on 24.7.2001 the respondent filed Caveat Petition No.158 of 2001 under Section 148-A of C.P.C. Since the necessary affidavit, as prescribed under the Original Side Rules, was not filed in time, the respondent filed Application No.1021 of 2002 on 21.2.2002 to condone the delay of 229 days in filing the affidavit. The said application was ordered by the learned Judge by order dated 29.4.2002. Against the said order of the learned Judge, the appeal has been filed. 2.The contention of the learned senior counsel for the appellant is that in a probate proceeding under the Original Jurisdiction of this court, only the procedure prescribed under the Original Side Rules is applicable. In respect of filing Caveat, Order XXV of the Original Side Rules deals with the procedure. Hence the filing of Caveat by the respondent under Section 148-A of C.P.C cannot be considered to be a Caveat in respect of the probate proceedings initiated by the appellant. Hence, in the eye of law, there is no Caveat at all by the respondent and when that be so, there is no question of entertaining an application for condoning the delay in filing the affidavit in support of the Caveat. Even assuming for the purpose of argument that the Caveat filed by the respondent under Section 148-A of C.P.C can be treated as one under the Original Side Rules; still it is for the respondent to file an affidavit during the life time of the Caveat. The validity of the Caveat being for 90 days, it is for the respondent to file an affidavit in support of such Caveat before ever the period of 90 days expires. Once the Caveat expired, thereafter no affidavit can be filed in support of the non-existing Caveat and as such the petition for condoning the delay is of no use and cannot be entertained. The other alternate argument is that if the Caveat filed by the respondent is to be construed as one under the Original Side Rules, then the limitation for filing the affidavit is to be governed as prescribed under the Original Side Rules. The other alternate argument is that if the Caveat filed by the respondent is to be construed as one under the Original Side Rules, then the limitation for filing the affidavit is to be governed as prescribed under the Original Side Rules. Admittedly the respondent did not file the affidavit in support of the Caveat before ever the expiry of the period of eight days or even before the expiry of the caveat and as such the court has no jurisdiction to condone the delay in filing the affidavit. In the absence of any Rule under the Original Side Rules, conferring jurisdiction on the court to condone the delay in filing the affidavit, the learned Judge had passed the order without any jurisdiction and consequently the same is liable to be dismissed. 3.The learned counsel for the respondent, on the contrary, contended that the Rules prescribed under Order XXV of the Original Side Rules are only procedural law and such procedural law cannot be mandatory. The procedures prescribed under the Original Side Rules can be only directive and as such the court has ample power or jurisdiction to issue direction to pass orders, depending upon the facts and circumstances of the case to render justice. When the procedure prescribed under the Original Side Rules do not contain any Rules, contemplating the filing of Caveat by the respondent after the notice in the O.P was served, then it is for the court to grant permission to the respondent to file their objections by way of an affidavit and to proceed with the trial. In this case, the learned Judge has permitted the respondent to file an affidavit and when the order of the learned Judge is in the interest of justice, no interference is called for from this court. 4.We carefully considered the above contentions of both the counsel. At the outset, we would like to point out that O.P.97 of 2001 filed by the appellant for the issue of probate is still pending on the file of this court. The respondent was served with the notice in the O.P and thereafter the respondent filed the Caveat Petition 158 of 2001 on 24.7.2001 and on 21.2.2002 filed Application No.1021 of 2002 for condoning the delay in filing the affidavit in support of the Caveat. The respondent was served with the notice in the O.P and thereafter the respondent filed the Caveat Petition 158 of 2001 on 24.7.2001 and on 21.2.2002 filed Application No.1021 of 2002 for condoning the delay in filing the affidavit in support of the Caveat. 5.In order to appreciate the contention of the learned senior counsel for the appellant, it is necessary to refer some of the procedures laid down under the Original Side Rules of this court dealing with the testamentary matters. We are not dealing with the procedure for filing the probate petition, since we are concerned here with the Caveat and the purpose of the filing of the affidavit by the respondent alone. 6.Rule 51 of Order XXV of the Original Side Rules empowers any person intending to oppose the issue of a grant of probate or letters of administration must file a Caveat in the Registrar's Office in the prescribed Form. If such Caveat is filed, the Registrar shall give notice to the petitioner under the prescribed Form. 7.Rule 52 of Order XXV of the Original Side Rules envisages the filing of Caveat after the application for probate was filed. When a Caveat is entered after an application has been made for the grant of probate or letters of administration, the affidavit in support of the Caveat shall be filed within 8 days of the Caveat being filed, giving out the right and interest of the Caveator and the grounds of objection. 8.Rule 53 of Order XXV of the Original Side Rules deals with the situation where the Caveat has been filed prior to the filing of the O.P, about which we are not concerned. 9.Rule 54 of Order XXV of the Original Side Rules empowers the court to discharge the Caveat by an order of court where the Caveator failed to file the affidavit in support of the Caveat. 10.Rule 55 of Order XXV of the Original Side Rules prescribes the conversion of O.P into a suit when the affidavit in support of the Caveat is filed by the Caveator. 11.Rule 56 of Order XXV prescribes the period for the validity of the Caveat and specified that the Caveat shall remain in force for the space of six months only and then expire and be of no effect. However, the said Rule gives liberty to the Caveator to renew the same from time to time. 11.Rule 56 of Order XXV prescribes the period for the validity of the Caveat and specified that the Caveat shall remain in force for the space of six months only and then expire and be of no effect. However, the said Rule gives liberty to the Caveator to renew the same from time to time. In respect of the other Rules we are not concerned in this proceeding. 12.The question for consideration in this appeal are: (i)whether by virtue of the expiry of the Caveat filed by the respondent on 24.7.2001 on the expiry of six months period as contemplated under Rule 56 of Order XXV of the Original Side Rules, the application for condoning the delay in filing the affidavit is not maintainable? (ii)Whether the court has jurisdiction to condone the delay during the life time of the Caveat even though the period fixed under the Rules for filing such affidavit expired? 13.In the case on hand, the appellant filed the O.P on 7.10.1999. The respondent filed the caveat on 6.7.1999 under Section 148 of C.P.C. If it is to be taken as a caveat filed under the Civil Procedure Code, it expired on 6.10.1999. By virtue of the principle that quoting a wrong provision may not be a ground to refuse the relief and the said caveat is to be treated as one filed under Rule 56 of Order XXV of the Original Side Rules, the caveat will be in force for six months. In that case, it is valid till 6.1.2000. But, however, the main O.P filed by the appellant was numbered as O.P.97 of 2001 only on 7.2.2001 by which time the caveat filed by the respondent in the year 1999 expired. 14.After the main O.P was taken on file, notice was sent to the respondent, irrespective of the mode of service on the respondent, the fact remains that their counsel filed vakalat on 23.7.2001. The very next day, the respondent filed a fresh Caveat Petition No.158 of 2001 which is also under Section 148-A of C.P.C. Hereagain if the caveat is construed as one under the Original Side Rules, then the caveat expired on 24.1.2002. The very next day, the respondent filed a fresh Caveat Petition No.158 of 2001 which is also under Section 148-A of C.P.C. Hereagain if the caveat is construed as one under the Original Side Rules, then the caveat expired on 24.1.2002. 15.Coming to the filing of the affidavit in support of the caveat, Rule 52 of Order XXV of the Original Side Rules deals with the situation where a caveat has been filed after the application was made for the grant of probate i.e., subsequent to the filing of the main O.P. The said Rule contemplates that where the caveat is entered after the application has been made for the grant of probate or letters of administration, the affidavit in support of the caveat shall be filed within 8 days of the caveat being filed stating the right and interest of the caveator and the grounds of the objections. Hence as per this Rule, there is no doubt that the respondent ought to have filed the affidavit in support of the Caveat Petition No.158 of 2001 by 1.8.2001 irrespective of whether the caveat is one under C.P.C or under the Original Side Rules. Admittedly this has not been done. Only on 21.2.2002 Application No.1021 of 2002 was filed by the respondent for condoning the delay in filing the affidavit in support of the caveat. 16.When the filing of the affidavit in support of the caveat is contemplated, it goes without saying that the caveat must be in force either on the date of filing of the affidavit or on the date of filing of the application to condone the delay in filing the affidavit in support of such caveat. Rule 56 of Order XXV of the Original Side Rules envisages that the caveat filed in the testamentary proceedings shall remain in force for a period of six months and then it expired and thereafter it will be of no effect. Hence on the lapse of six months period, the Caveat Petition 158 of 2001 filed on 24.7.2001 expired and is of no effect. So on the date of filing the Application 1021 of 2002 for condoning the delay in filing the affidavit in support of the caveat undoubtedly the caveat has no life and it has become a dead letter. Hence on the lapse of six months period, the Caveat Petition 158 of 2001 filed on 24.7.2001 expired and is of no effect. So on the date of filing the Application 1021 of 2002 for condoning the delay in filing the affidavit in support of the caveat undoubtedly the caveat has no life and it has become a dead letter. When the caveat has no effect on the date of filing the Application 1021 of 2002 definitely as contended by the learned counsel for the appellant the application for condoning the delay in filing the affidavit itself cannot be entertained for the simple reason that the caveat had already expired and is of no effect and an affidavit in support of such caveat cannot be entertained. Hence we find some force in the contention of the learned counsel for the appellant. Though the counsel referred to some of the judgments, in our view, it is unnecessary to refer the same, as the contentions of the respective counsel have to be appreciated on the basis of the language used in the procedural law. In view of our finding that the Application 1021 of 2002 cannot be maintained by virtue of the expiry of the Caveat Petition 158 of 2001, we have to hold that the order of the learned Judge cannot be sustained. 17.The next question arises for consideration is whether the respondent who has been invited to the court through the notice served on her in the main O.P can be driven away without giving any opportunity to defend the claim of the appellant; especially when the notice is sent to her only for the purpose of answering the claim of the appellant. The purpose of filing the Caveat and the filing of the affidavit in support of the Caveat is contemplated in Rule 55 of Order XXV of the Original Side Rules. As per the said Rule, upon the affidavit in support of the caveat being filed, the proceedings shall be numbered and registered as a suit in which the petitioner in the main O.P shall be the plaintiff and the caveator shall the defendant. As per the said Rule, upon the affidavit in support of the caveat being filed, the proceedings shall be numbered and registered as a suit in which the petitioner in the main O.P shall be the plaintiff and the caveator shall the defendant. The testamentary proceedings being summary in nature, when an objection has been filed putting forth inter se claim, then the nature of the proceedings is being changed into an ordinary suit and the O.P is converted into T.O.S. Admittedly Rules 51 to 57 of Order XXV of the Original Side Rules which relates to the filing of the caveat and the affidavit in support of the caveat, either before filing the O.P or after the filing the O.P as well as after the receipt of the notice in the O.P. do not prescribe any time limit for filing the caveat by the caveator where an application has already been made for the grant of probate or letters of administration. In fact Rule 56 of Order XXV gives the liberty to the caveator to renew the caveat from time to time. The renewal arises if the application is filed before the expiry of the earlier caveat. If no application is made for renewal and the caveat is of no effect by virtue of the expiry of the period, then there is no bar under the procedural law for the caveator or the respondent in the application for the grant of the probate or letters of administration from filing a fresh caveat; especially in the absence of any time limit for the same. 18.When the parties have come to the court for their redressal, it is always open to the court in order to render full justice in accordance with the good conscience to pass suitable orders. 19.It may be worth to refer a recent judgment of the Apex Court in RAMESH WADHAWAN v. JAGDAMBA INDUSTRIAL CORPN. (2002) 5 SCC 440 ) where the learned Judges have held as follows: "A statute can never be exhaustive, and therefore, Raghubar Dayal, J, speaking for himself and Wanchoo and Das Gupta, JJ, observed in MANOHAR LAL CHOPRA v. RAI BAHADUR RAO RAJA SETH HIRALAL ( AIR 1962 SC 527 ) at page 532, para 18, "that a legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them". Sometimes when a difficult situation arises it may demand such directions being made as would pragmatically meet the needs of the situation and resort can be had to be inherent powers of the court, if need be. Krishna Iyer, J, in NEWABGANJ SUGAR MILLS CO. LTD. v. UNION OF INDIA (1976) I SCC 120) (held at page 123, para 6) "the difficulty we face here cannot force us to abandon the inherent powers of the Court to do", and he quoted Jim R. Carrigan to say: "The inherent power has its roots in necessity and its breadth is coextensive with the necessity." H.R. Khanna, J, observed in JAIPUR MINERAL DEVELOPMENT SYNDICATE v. CIT (1977) I SCC 508)(page 511, para 5) "The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice." Jurisdiction to pass procedural orders though not specifically contemplated by statute can be spelled out from what was said by Hidayatullah,J (as he then was) in MAHANTH RAM DAS v. GANGA DAS ( AIR 1961 SC 882 ) when orders are "in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay" the courts are not powerless to meet a situation for "such orders are not like the law of the Medes and the Persians"(p.883, para 5)" 20.In the case on hand, the main O.P is pending. The respondent has been invited to the court by way of notice in the proceedings. There is no prescribed time limit for the respondent to file caveat after the application has been made for the grant of probate or the letters of administration. In such circumstance even though the respondent's earlier Caveat Petition 158 of 2001 expired and the respondent cannot be permitted to file any affidavit in support of such expired caveat, in the interest of justice, we are of the view that the respondent can be permitted to file a fresh caveat mainly on the ground that having invited her before this court by the issue of notice, on a technical ground, her rights cannot be ignored. 21.Hence even though the order of the learned Judge cannot be sustained and the same is liable to be set aside, we direct the respondent to file a fresh caveat within one week from today and file an affidavit in support of the said caveat within a week thereafter so that the procedural formality can be complied with. The appeal is ordered accordingly. However, there will be no order as to costs.