Shivakant Prasad, J. - (1.) Question raised on behalf of the defendant is that the probate suit is not maintainable without the plaint being duly verified on affidavit. Mr. Maloy Kr. Ghosh, learned Advocate for the defendant at the outset submitted that when the probate application becomes contentious it is registered as probate suit and the application is deemed plaint and adverted to provision of Rule 28 of Chapter XXXV of Original Side Rules which is reproduced hereunder for profitable appreciation 28. Procedure on affidavit being filed. Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code.
(2.) Mr. Ghosh also refers to provision of Order VI Rule 15(4) of the Code of Civil Procedure which is to the effect that the person verifying the pleading shall furnish an affidavit in support of his pleadings and further refers to the provision of Order IV rules (2) and (3) which provide that every plaint shall comply with the rules contained in Orders VI and VII of the Code, so far as they are applicable and that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2) of Order IV and relied on a decision in case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India reported in, 2005 AIR(SC) 3353 wherein it has been observed in paragraph 4 that: Prior to insertion of aforesaid provisions, there was no requirement of filling affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading (Order VI Rule 15(4)).
(3.) I have respectfully gone through the decision and held that affidavit is required to be filed as per amended provision of Order VI Rule 15(4) of the Code of Civil Procedure.;