Disposed

Ujjwala Mhatre, C.A. of Christopher Fernandes v. Mrs.Phylis Fernandes of Mumbai

Bombay HC2 Sept 2013CST/6/2012

Case brief

AI extract

What is this about?

In a chamber summons regarding a caveat in a succession suit, the High Court of Bombay dismissed the plea for condoning delayed amendment. Instead, it ordered the issuance of a witness summons, appointment of a court commissioner to record evidence, and equal sharing of costs.

What did the court decide?

Witness summons directed; Court Commissioner appointed; parties to share costs; parties to remain present for recording evidence.

Ujjwala Mhatre, C.A. of Christopher Fernandes… — Civil Procedure and Limitation | Bombay HC (2013)

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14-CST6.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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T. & I. J.

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CHAMBER SUMMONS NO. 6 OF 2012 IN SUIT NO. 56 OF 2001 IN SUIT NO. 689 OF 2001

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Ujjwala Mhatre, C.A. of Christopher Fernandes VERSUS

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Mrs.Phylis Fernandes & Anr.

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..... Plaintiff

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..... Defendants

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Mr.B.Saraf for the Applicant.

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Mr.Arvind Shah for the Respondents.

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CORAM : R.D. DHANUKA, J. DATED : 2^nd SEPTEMBER, 2013

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P.C.

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By this chamber summons filed by the caveator, caveator seeks condonation of delay and to amend the affidavit in support of the caveat filed on 17^th October, 2001. It is the case of the caveator that after filing of caveat, the caveator has received letter dated 2^nd April, 2002 from one of the alleged attesting witness Dr.S.G.Gokhale who had not met the deceased for execution of the alleged Will. Caveator seeks to bring this allegation on record by amending the affidavit in support of the ceveat. Even if any such letter is addressed by Dr.S.G.Gokhale as on 2^nd April, 2002, no amendment can be permitted after more than 10 years. It is made clear that if the caveator seeks to examine Dr.S.G.Gokhale as their witness, it is for the caveator to take steps in that direction. On oral application of Mr.Saraf, learned counsel appearing for the caveator, office is directed to issue witness summons to Dr.S.G.Gokhale residing at 145, Aloma, Perry Road, Bandra, Mumbai

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14-CST6.12

– 400 050 with a request to remain present for recording evidence after six weeks.

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In the meanwhile, petitioner who has already filed affidavit of the attesting witness can be cross examined by the caveator.

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By consent of parties Ms. Neelam Dusija, having address at Medow's House, 5^th Floor, Nagindas Master Road, Fort, Mumbai – 400 023 is appointed as a Court Commissioner for recording evidence of the witness proposed to be examined by the petitioner.

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It is made clear that both parties will share the costs and expenses of the Court Commissioner equally at the first instance and shall co-operate with each other and with the learned Commissioner.

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Learned Commissioner is requested to submit report within two months from today. It is made clear that as far as evidence of the witnesses proposed to be examined by the caveator including the evidence of Dr.S.G.Gokhale shall be commenced only after the evidence of the petitioner's witness is completed.

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Both parties are directed to remain present before the Court Commissioner appointed today by this court on 16^th September, 2013 at 05.00 p.m. at the venue to be mutually decided.

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Chamber Summons is disposed of in the aforesaid terms. No order as to costs.

Ujjwala Mhatre, C.A. of Christopher Fernandes v. Mrs.Phylis Fernandes of Mumbai

Case brief

What is this about?

What did the court decide?

Ujjwala Mhatre, C.A. of Christopher Fernandes v. Mrs.Phylis Fernandes of Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

Coram

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