- (1.) A preliminary issue whether the objections can be entertained and the matter be allowed to be contested even though no caveat as provided under Rule 35 of Chapter XXX of the Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules) has been filed is for consideration before me. The brief facts leading to the above preliminary issue are that the petitioner Smt. Prakashi wife of Budhsen applied for grant of Letters of Administration in respect of the estate and credits of the deceased Ajab Singh with the Will annexed.
(2.) NOTICE of the petition was published in the news papers Danik Jagran (Hindi) and Hindustan Times (English) besides being sent to the next of kins of the deceased by registered post. Sri D.S. Bohra appeared as counsel according to the office report dated 31.3.2010 on behalf of Jitendra and Kiran Pal nephews of the deceased. He filed objections to the petition on their behalf where upon the matter was adjourned for one reason or the other. Ultimately, the court, due to absence of Sri D.S. Bohra and the caveat on behalf of the parties represented by him vide order dated 29.4.2010 held that matter is non-contentious in nature. The application moved by them for the recall of the above order was rejected on 22.4.2011. These two orders were challenged by them in Special Appeal No.761 of 2012, Jitendra and another Vs. Smt. Prakashi. The appeal was disposed of vide judgment and order dated 2.4.2013. The orders impugned referred to above were set aside on payment of Rs.15000/- as cost with liberty to file objections supported by affidavit, if not already filed within two weeks.
(3.) IN pursuance to the above order the cost was paid as is admitted. The objections had already been filed as such no necessity was felt for filing further objections but no caveat was ever filed. It is in the above background in the absence of the caveat as provided under Rule 35 of Chapter XXX of the Rules that an objection was raised that the case cannot be converted into a suit as provided under Rule 39 of Chapter XXX of the Rules whereupon the above preliminary issue was formulated.;