: 1 : nms-162-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 162 OF 2009 IN TESTAMENTARY SUIT NO. 6 OF 1996 IN TESTAMENTARY PETITION NO.691 OF 1995 Ronak P. Shah alias Ronak A. Vaja .. Plaintiff/ Petitioner v/s. Pinakin K. Shah .. Defendant/ Respondent ......... Mr. J.P. Sen with Ms. Ferzana Behramkamdin & Ms. Swati Deshpande for the plaintiff in support of NM 162/09 Mr. D.H. Mehta with Preeti Gada i/by Sudhir Shah & Associates for defendants in support of NM 148/09. ......... CORAM : R.Y.GANOO, J. DATE : 16th JULY, 2010. P.C. : 1. The petitioner herein filed the petition for the letters of administration. The defendant herein filed the caveat and affidavit in support of the caveat by January, 1996 raising objections for the grant of the petition on various points. : 2 : nms-162-09=.sxw Subsequent to that, the petition came to be amended and defendant wanted to file his written statement as by that time, the petition was converted into a suit being Suit No.6 of 1996. After the amendment of the petition, the present notice of motion has been taken out by the plaintiff in October, 2009 praying that the caveat filed by the defendant should be treated as cancelled and the petition be taken up for disposal in accordance with the provisions of law. 2. I have heard learned Counsel on both sides. One of the objection to the grant of the petition in favour of the plaintiff is he was not the heir of Mr. Piyush Kantilal Shah, since deceased and that is how he has no authority to secure letters of administration. Second point was with reference to ownership of Flat No.6 situate in building Shri Niketa, Maharshi Karve Road, Marine Lines, 2nd Cross Road, Mumbai-20. One more point as regards institution of the petition for letters of administration is after the lapse of about 18 years, ground was taken up alleging therein that there has been a delay in filing the petition. 3. This notice of motion has been taken out by the plaintiff so : 3 : nms-162-09=.sxw as to contend that the three grounds raised by the defendant do not raise facts in issue and, therefore, the caveat should not be taken on record and proceeded further. 5. After having considered the Original Side Rules on the question of prosecuting the petition for letters of administration, it is noticed that when a caveat is filed, the petition can be converted into a suit. Certainly, if in the affidavit in support of the caveat no ground even prima-facie, is made out then such a caveat is without any meaning and the petition has to be taken ahead but if certain points are raised by way of a defence certainly, the Court must consider that defence by framing the appropriate issues, giving an opportunity to the defendant who has filed the caveat to discharge the burden cast on him so that the Court can decide the suit on merits. Applying this principle to the facts of the present case, the defendant herein has raised the point as regards authority of the plaintiff to institute this petition for letters of administration on account of certain facts which took place after the death of the deceased till the lodgment of the petition. The petitioner ceased to be the heir of the deceased. The defendant had no right to say to be the heir : 4 : nms-162-09=.sxw of the deceased. 6. In my view, it would not be proper for this Court to test the defence put up by the defendant before allowing the parties to lead their respective evidence. He ought to be given reasonable opportunity to make out his defence, may be in a given case by leading the evidence. Certainly, this exercise of recording of evidence cannot be carried out at two stages i.e. stage one as is suggested by the plaintiff and stage two, the regular evidence to be recorded in a contested suit. If the defence put up by the defendant appears to be tenable, of course, by applying the touch stone of prima-facie case, said defence will have to be taken up for further hearing and to that extent the point raised by the Counsel for the plaintiff by taking out the present notice of motion cannot sustain. 7. The conduct of the plaintiff is worth noting as regards taking out the present notice of motion. The caveat came to be filed in the year 1996. Thereafter, the petition was amended and thereafter the plaintiff kept calm and quite, allowed the suit to remain pending and it is only in the year 2009, he thought of : 5 : nms-162-09=.sxw filing this notice of motion to claim that the caveat should be cancelled. Certainly, the copy of the affidavit in support of the caveat must have been served upon the plaintiff, if not on the next day of filing of the caveat in the Court but within a reasonable time that means the plaintiff had a chance to read caveat from January / February, 1996 and if he had any serious objection with reference to the text of the caveat he should have and would have taken up proceedings of whatever nature soon thereafter. While taking out this present notice of motion, he certainly exhibited latches. This motion is taken out to stall the defendant from putting up his defence. On the ground of delay, the motion cannot be entertained. This is because the peson who wants certain reliefs from the Court must approach the Court at the first available opportunity. 8. In my view, looking to the year of the Petition namely 1995, this is a fit case where the Court should pass the order that the petition be taken up expeditiously for determination in accordance with the provisions of law. In my view, this would meet the ends of justice as both the parties would be able to table their case before the Court for its detemination. : 6 : nms-162-09=.sxw 9. For the reasons mentioned aforesaid, this notice of motion is required to be dismissed and hence following order is passed. ORDER (i) Notice of motion is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)