Counsel admitted confusion led to an earlier order allowing a notice of motion without service. This court recalled that order and restored the notice of motion for service within two weeks and subsequent hearing on merits.
Notice of Motion No. 23 of 2015 restored to file; ordered to be served within two weeks and heard on merits.
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.
30-NMT58-16.DOC
SHEPHALI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO. 58 OF 2016
IN
NOTICE OF MOTION NO. 23 OF 2015
IN
MISCELLANEOUS PETITION (L) NO. 1001 OF 20-7
IN
TESTAMENTARY PETITION NO. 935 OF 2006
Rajan Gopinath Khot & Anr....Petitioners
Versus
Prafulla Kamlakar Gavande & Anr.…Respondents
Mr. Rajeev S. Matkar, for the Petitioners.
Mr. Jignesh Shah, for the Respondent No. 3.
CORAM: G.S. PATEL, J DATED: 26th September 2016
PC:-
1.This Notice of Motion is taken out because Mr. Matkar
points out in fairness that his previous Notice of Motion No. 23 of
2015 for restoration was allowed on the footing that an Affidavit of
Service was on file. In fact, there was some misunderstanding or
confusion in the papers; that Notice of Motion had not even been
served. The papers were mixed up with those in another matter
Page 1 of 2
26th September 2016
30-NMT58-16.DOC
between the same parties. This caused the Notice of Motion No. 23
of 2015 to be allowed. That was a Notice of Motion taken up by the
present Applicant himself. The Applicant now seeks that the order
dated 9th March 2016 allowing Notice of Motion No. 23 of 2015 be
recalled and that the Applicant be allowed to serve Notice of Motion
No. 23 of 2015 and that it thereafter be heard on merits. This is an
eminently fair application, despite the delay.
2.On the ground of delay, this application is opposed. This is
logically inconsistent: if I accept the opposition to this Notice of
Motion, it would necessarily mean that the order dated 9th March
2016 stands. Upon my pointing this out, the objection is promptly
withdrawn.
3.The present Notice of Motion No. 58 of 2016 is made
absolute in terms of prayer clauses (a) and (b).
4.Notice of Motion No. 23 of 2015 is restored to file. It is to be
served within two weeks from today.
(G. S. PATEL, J.)
Page 2 of 2
26th September 2016
1 issue framed by the court
Whether to recall an order allowing a previous notice of motion due to service confusion and restore that notice of motion for hearing on merits.
Rajan Gopinath Khot
Prafulla Kamlakar Gavande
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court