AIR 2009 BOMBAY 117 ::2009 (2) AIR Bom R 779 ::2009 (5) AKAR (NOC) 850 (BOM.) ::2009 (5) AIR Kar R 850 ::2009 A I H C 2715 ::(2009) 3 AllMR 297 (BOM) ::2009 (3) All MR 297 ::2009 (1) BomCR 416 ::2009 (1) Mah LJ 389

Bombay High Court

Hon'ble Judge(s): D. G. Karnik , J

(A) Civil Procedure Code (5 of 1908) S. 148 -A, O.8, R.9 — Succession Act (39 of 1925), Ss 276, 284 — Bombay High Court (Original Side) Rules (1980), Rr 401, 402, 403 — Grant of probate — Application for — Caveat by person opposing grant of probate — Affidavit in support of caveat — Is to be filed within eight days of filing of caveat — Tender of additional affidavit — Principle laid down in Civil P C O 8, R 9 would apply — Hence leave of Court necessary — Additional affidavit tendered without leave of Court cannot be taken on record {" The principle laid down in Order 8, Rule 9 of the Code of Civil Procedure that no pleading subsequent to the written statement shall be presented except with the leave of the Court does, apply even to the affidavit in opposition as the affidavit is to be treated as the written statement. Additional affidavit in the instant case was tendered in the Court without leave of the Court. Therefore, the additional affidavit cannot be treated as pleading or written statement as contemplated by Rule 403 of the Rules and cannot be taken on record. (Para 5) "} .....