Allowed

Kamlesh Sunder Vazirani Nee Hansa Nihal Vazirani v. Narendra Nihal Vazirani

Bombay HC30 Oct 2015NMT/136/2015

Case brief

AI extract

What is this about?

This order recalls a previous order that had allowed the plaintiff's notice of motion to dismiss a caveat. The court accepted the explanation that the caveator was absent due to a discrepancy between printed and digital court listings. The order restores the caveat and existing litigation, restrains the plaintiff from acting on post-date property transfers, and recalls the earlier grant of letters

What did the court decide?

Occasion granted to recall order dated 13th November 2014; Caveat restored; Plaintiff restrained from acting on property transfers; Letters of administration recalled.

Kamlesh Sunder Vazirani Nee Hansa Nihal Vazirani… — Succession and Inheritance | Bombay HC (2015)

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903-NMT136-15.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

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NOTICE OF MOTION NO. 136 OF 2015

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IN

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NOTICE OF MOTION NO. 91 OF 2014

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IN

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TESTAMENTARY SUIT NO. 47 OF 2014

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IN

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TESTAMENTARY PETITION NO. 1758 OF 2013

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Kamlesh Dunder Vazirani Nee Hansa Nihal …Plaintiff
Vazirani

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Versus

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Narendra Nihal Vazirani…Defendant

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Mr. Y. Ghogari, i/b M/s. Sonal Doshi & Co., for the Plaintiff.
Mr. P. Diwan, with Mr. S. Bhimekar, & Mr. D. Parmal, i/b M/s. DSR
Legal, for the Caveator/Applicant.

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CORAM: G.S. PATEL, J DATED: 30th October 2015

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PC:-

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1.This is a Notice of Motion for recall of my order dated 13th
November 2014, a copy of which is at Exhibit “B” to the Affidavit
in Support of this Notice of Motion. By that order, I allowed the

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903-NMT136-15.DOC

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Plaintiff’s Notice of Motion for dismissal/discharge of the Caveat.
The Caveator was not represented on that day.

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2.In paragraphs 4 to 6 of the Affidavit in Support of the present
Notice of Motion, the Caveator has set out several reasons why he
could not be represented. The Caveator’s Advocates appearance
was not in fact shown on the Internet board, and neither the
Caveator’s Advocates nor the alert service to which they subscribed
showed the matter on that day. The Caveator says that he presumes
that though the matter might have been shown on the printed board
(and hence a discrepancy between the digital and hard copy list), in
all probability the Caveator’s Advocates name must not have been
shown on the printed board.

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3.It makes little difference even if the name of the Caveator’s
Advocate was shown on the printed board. I do not think it is
reasonable to expect Advocates to check multiple listings and figure
out discrepancies, if there be any. Indeed, what seems to have
happened is that the matter was listed that day on the weeklyboard.
This is a third list, in addition to the supplementary board and the
daily board. That it was so shown is obvious from the header of the
order copy, since it is my invariable practice to note the serial
number of the matter in the order in the order’s digital filename,
and the filename is shown in the header. The filename indicates
“218”, and the 200 series is one used for the weekly board.

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4.This is a truly unfortunate mishap. Even if the names of the
Advocates for the Caveator were shown, this was on the weekly
board and it is entirely possible to have missed that listing. It is not

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903-NMT136-15.DOC

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in dispute that the Caveator was not represented that day. It is far
too well settled to admit of dispute that no act of a court should
prejudice a party, and, equally that no litigant should suffer on
account of a lapse by his or her advocate. That is what seems to
have happened on 13th November 2014.

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5.The Notice of Motion is made absolute in terms of prayer
clauses (a) and (b).

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6.In view of this order, the Plaintiff’s Notice of Motion no. 91
of 2014 (for dismissal/discharge of the Caveat), as also Plaintiff’s
other Notice of Motion No. 90 of 2014 (for grant of the Letters of
Administration) are both restored to file.

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7.Mr. Diwan for the Caveator points out that pursuant to the
order of 13th November 2014, the one that I have just recalled, the
Plaintiff has moved with a very great deal of expedition and seems
to have effected certain transfers of property. I am not assessing
those transfers on merits at this stage. These will be decided at the
time of hearing of that Notice of Motion. However, the Plaintiff is
restrained from acting upon any such transfer, and giving effect to
any such transfer or claiming any rights, benefits or equities
pursuant to that transfer. It will be open to the Plaintiff in either of
the restored Notices of Motions to contend that as a result of these
transfers, the Caveat should be discharged.

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8.Finally, the inevitable consequence of the recall of the order
dated 13th November 2014 is that the Letters of Administration
granted pursuant to that order are necessarily recalled/set aside.

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903-NMT136-15.DOC

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Ordinarily, I would have merely suspended the operation of that
grant, but Mr. Diwan makes a statement, on instructions, that his
client agrees and undertakes to bear and pay all costs attendant on
the issue of a fresh grant, should that grant be finally allowed after
the Notices of Motion mentioned above are disposed of. This
statement is accepted as an undertaking to the Court.

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(G. S. PATEL, J.)

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Kamlesh Sunder Vazirani Nee Hansa Nihal Vazirani v. Narendra Nihal Vazirani

Case brief

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What did the court decide?

Kamlesh Sunder Vazirani Nee Hansa Nihal Vazirani v. Narendra Nihal Vazirani

Case brief

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What did the court decide?

What the court decided

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