Ramesh Kumar Datta, J.@mdashI.A. No. 1790 of 2009 has been filed by the plaintiff seeking recall of the order dated 14.1.2009 passed by this Court by which the objection petition filed by the defendant-objectors on 17.9.2008 was allowed.
2. The stand taken in the application is that the objection had been filed beyond the mandatory period of eight days as provided by Rule 18, Chapter XI Part II of the Patna High Court Rules. It is stated that the objectors/defendants appeared after service of notices and filed a caveat on 19.8.2008 and thereafter the objection petition was filed on 17.9.2008 after expiry of 29 days from the filing of the caveat.
3. It is submitted by learned Counsel for the plaintiff-applicant that under the aforesaid Rule 18 of the Patna High Court Rules objection petition has to be filed within eight days of the filing of the caveat and under Rule 20 where no such objection is filed in compliance of Rule 18 then the caveat may be discharged by the Court. In this regard learned Counsel for the plaintiff relies upon a decision of this Court reported in
14. From bare perusal of the provisions as laid down in Rules 17 to 20 of the Rules, it is clear that there is some time limit for filing affidavit in support of the caveat which admittedly has not been done in this case.
4. Learned Counsel for the defendants opposes the interlocutory application stating that the provisions contained in Rule 18 are not mandatory but directory.
5. On a consideration of the relevant Rules this Court is of the view that the provisions of aforesaid Rule 18 and Rule 20 of the Patna High Court Rules are not mandatory but directory in nature. It is an established principle of interpretation that the Rules relating to procedure are normally to be read as directory even though they may be couched in mandatory language. It is true that Rule 18 provides that the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation, and such affidavit shall state the right and interest of the caveator, and the grounds of the objections to the application. However, Rule 20 itself provides that where the caveator fails to file an affidavit in support of his caveat in compliance with Rule 18 or in compliance with the notice issued under Rule 19 the caveat may be discharged by the Court. It is thus evident that the requirement of filing affidavit within eight days although apparently in mandatory form, but the effect of non-filing the same as given in Rule 20 has been stated in directory form and it is open to the Court in such circumstances to either discharge the caveat or pass any other order where Rule 18 is not complied with.
6. In the present case 29 days after the filing of the caveat the affidavit of objection has been filed. Thus it is not wholly a case of failure to file an affidavit rather it is a case of delayed filing. The Rule not being mandatory but directory even in case of non-filing of objection, the same will not automatically discharge the caveat until a specific order in terms of Rule 20 is passed by the Court. It is thus open to the Court in such circumstances to either discharge the caveat or to excuse the delayed filing of the affidavit beyond eight days and accept the same.
7. In the case of Goods of late Rajo Singh (supra) although in the plecitum it is stated that affidavit not being filed within eight days of the caveat being lodged is violative of mandatory provisions of Rule 18 of Patna High Court Rules, but learned Counsel for the petitioner was unable to show any such laying down of law from this judgment except submission made to that effect by learned Counsel for the petitioner of that case. The caveat petition itself was found not to be entertainable by this Court taking into consideration the facts and circumstances of the case which showed that Vakalatnama was filed by the caveator of that case on 22.2.91 but the caveat was filed much later on 21.5.93 and that too without an affidavit or proper form as required under the Act and in the meantime the witnesses had already been examined on behalf of the petitioner-executor. Under those circumstances, this Court came to the conclusion that the caveat petition cannot be entertained. Such is not the position in the present matter where the affidavit has been filed within 29 days of the filing of the caveat.
8. Moreover, in the instant case after the filing of the caveat on 19.8.2008, on the prayer of the defendants this Court by order dated 4.9.2008 had granted two weeks time to the defendants to file written statement in respect of caveat and thereafter affidavit of objection was filed on 17.9.2008, i.e., within two weeks as permitted by this Court.
9. Hence there is no force in the submission of learned Counsel for the plaintiff that the objection petition ought not to have been allowed and the order dated 14.1.2009 ought to be recalled.
10. Accordingly, this Court finds no merit in the interlocutory application and it is dismissed.
11. As prayed for by learned Counsel for the defendants put up the matter on 4th September, 2009 for settlement of issues. By the same date the plaintiff is directed to file the list of documents and list of witnesses.
