1 NMT174.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 174 OF 2009 IN SUIT NO. 54 OF 2009 IN PETITION NO. 491 OF 2006 Atul V. Kantharia & Anr. ... Plaintiffs. V/s. Jayshree Jaydev Bhatt. ... Defendant/Caveatrix. Mr. R.K. Dave i/b. M/s. Shailesh Thakkar & Co. for the Plaintiffs. Ms. Prachi Khandge i/b. M/s. M.P. Vashi & Associates for the Defendant. CORAM : R.Y. GANOO, J. DATED : 13th AUGUST 2010. P.C. :- This Motion is taken out for setting aside the caveat/caveats filed by the Defendants. Heard learned Advocates on both sides. It is common ground that first caveat is came to be filed on 23rd November 2006. Affidavit in support of the caveat was not filed within the stipulated period. Thereafter, again in the year 2003 second caveat alongwith the affidavit in support came to be filed. On the strength of that second caveat, the Petition was converted into a Suit. 2 NMT174.09.sxw 2. When the filing of the second caveat was to the knowledge of the Plaintiff, this Motion has been taken out. 3. It was argued by the learned Advocate for the Defendant that after the filing of the second caveat, the Petition has been converted into a Suit and therefore, first caveat cannot be set aside. 4. Learned Advocate for the Plaintiff had contended that if the first caveat filed by the Defendant has lapsed, there is no provision for filing a second caveat. Learned Advocate for the Defendant could not show to the Court any specific provision upon which when the first caveat is on record, the second caveat can be filed. 5. In my view, it is not possible for the contesting party as not to take steps in the proceedings filed in the first instance allow those proceedings to lapse and thereafter again try to revive the proceedings by filing the second caveat as has been done. 6. It is clear that office has, without application of mind, converted the Petition into Suit by noticing the second caveat and without noticing the filing of first caveat and lapse of it for not filing any affidavit in support of the caveat. In my view, the Motion is required to be granted and both the caveats are required to be set aside. 3 NMT174.09.sxw 7. Hence, following order is passed :- (i) Caveat filed in the year 2006 and in the year 2009 are set aside. In view of this, the Suit comes to an end. (ii) Office to process Testamentary Petition as per the provisions of law and grant probate. (iii) The probate can be granted in accordance with the provisions of law. (iv) There shall be not order as to costs. 8. After the aforesaid order is passed, learned Counsel for the Defendant prayed for stay of the operation of the order. The request is rejected as some time will require to process the Petition. (R.Y. GANOO, J.)