Court condoned 21-day delay in filing a Notice of Motion to recall a default order dismissing a previous caveat notice, restoring the matter for further listing.
Order dated 8 Dec 2015 recalling dismissed Notice of Motion recalled; Notice of Motion (L) No. 173 of 2015 restored to file.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
911-NMT34-16.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO. 34 OF 2016
IN
NOTIE OF MOTION (L) NO. 173 OF 2015
IN
CAVEAT NO. 300 OF 2015
IN
TESTAMENTARY PETITION NO. 525 OF 2015
Nafisa Abbasbhai Tambawala & Anr.…Applicants
In the matter between
Zainuddin Hakimuddin Arzoo...Petitioner
Versus
Nafisa Abbasbhai Tambawala & Ors. …Caveators
Mr. Uzair Kazi, i/b Waquar Ahmed, for the Applicants.
Mr. S.R. Saudagar, for the Petitioner.
CORAM:G.S. PATEL, J
DATED:11th March 2016
PC:-
1.This Notice of Motion seeks (i) that a delay of 21 days in
filing it be condoned; and (ii) that an order dated 8th December
2015 passed by the Prothonotary & Senior Master dismissing
1 of 3
911-NMT34-16.DOC
Notice of Motion (L) No. 173 of 2015 for default be recalled and
that previous Notice of Motion be restored to file.
2.Notice of Motion (L) No. 173 of 2015 itself sought that a
delay in filing a Caveat to oppose the Probate Petition be condoned.
3.The cause given for this series of defaults is that the previous
Advocate did not properly attend to the matter. I do not see why the
interests of a litigant should be harmed because of the action or
inaction of a lawyer.
4.The present Notice of Motion is made absolute in terms of
prayer clauses (a) and (b). The order dated 8th December 2015
passed by the Prothonotary & Senior Master is recalled and set
aside. Notice of Motion (L) No. 173 of 2015 is restored to file.
5.Office objections in Notice of Motion (L) No. 173 of 2015 to
be removed on or before 18th March 2016. It is clarified that if this
is not done, Notice of Motion (L) No. 173 of 2015 will stand
dismissed for default on that day. It will not thereafter be restored
under any circumstances, even on payment of costs, nor will any
fresh application for condonation of delay in filing the Caveat be
entertained.
6.If the office objections in Notice of Motion (L) No. 173 of
2015 are removed and satisfied by 18th March 2016, that Notice of
Motion is to be forthwith finally numbered and to be listed
peremptorily for hearing and final disposal high on the daily
board on 22nd March 2016.
2 of 3
911-NMT34-16.DOC
7. In order to ensure that there is no delay, learned Advocate for the Petitioner is directed to keep ready his Affidavit in Reply to Notice of Motion (L) No. 173 of 2015 and to serve a copy of this on the Advocate for the Applicants on or before 21st March 2016. No Affidavit in Rejoinder is to be filed without leave of the Court.
8. All concerned are directed to act on an authenticated copy of this order.
(G. S. PATEL, J.)
3 of 3
Nafisa Abbasbhai Tambawala
Zainuddin Hakimuddin Arzoo
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court