Mandatory plaint affidavit requirement controls institution; later filing cures defect only prospectively, not retrospectively.

An amended civil procedure regime made an affidavit in support of the plaint mandatory for due institution of a suit, and the later filing of that affidavit cured the defect only from that date. The Original Side Rules could not displace the amended Code, because they remained subordinate to the Code as amended and to the legislative aim of uniform procedure. The deeming provision in Order 4 Rule 3 was treated as controlling, so a plaint filed without the required affidavit was not duly instituted until compliance was completed, and any interlocutory order made before cure could not stand.

---

---

Issues: Whether, after the amendment to the Code, a suit instituted without an affidavit in support of the plaint could be treated as duly instituted on the strength of the Original Side Rules, and whether the later filing of the affidavit could validate the earlier interlocutory order.

Analysis: The amended provisions introduced a mandatory requirement that facts in the plaint be proved by affidavit, and the accompanying amendment to the rules on institution of suits made compliance with Order 4 and Order 6 essential for due institution. The Court held that the Original Side Rules could not override the amended Code, because the rules were subject to the Code as amended and to the legislative intent of uniform procedure. The deeming clause in Order 4 Rule 3 was treated as controlling, so a plaint not complying with the affidavit requirement was not duly instituted until the defect was cured. The later affidavit removed the defect, but it did not relate back to the original filing date.

Conclusion: The suit was not duly instituted until the affidavit was filed, and the interlocutory order passed before that date could not survive. The appeal was therefore allowed and the order under appeal was set aside.

---