Ashalata H. Mhatre Vs Chitra G. Vaidya and and Ors. K. a. Mhatre and Anr.

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904-NMT NO.69-2015.DOC

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JSN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.69 OF 2015

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IN

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TESTAMENTARY SUIT NO.2 OF 1997

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IN

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TESTAMENTARY PETITION NO.350 OF 1994

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Ashalata H. Mhatre alias Kandivalikar...Plaintiff

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Versus
Chitra G. Vaidya & Ors.

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...Defendants

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Ms. S. Abhyankar, for the Plaintiff

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Ms. Geeta Shashtri, for the Defendants Nos. 2(i) & (ii).

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Mr. Abhishek Prabhu, i/b. M/s. Thakore Jariwala & Associates for
for Defendant No.3.

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CORAM: G.S. PATEL, J. DATED: 23rd March 2016

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P.C.

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1.The Notice of Motion seeks that the delay in filing the
Motion be condoned and that the order dated 26th June 2014
(Hon’ble Mr. Justice S.J.Kathawalla) be recalled and set aside. A
copy of that order is at page 59. The Suit was dismissed for default.

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2.At the time of dismissal, this was the stage of the Suit:
Caveats had been filed. The Petition for probate had been

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904-NMT NO.69-2015.DOC

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renumbered as Suit. Issues had been framed. Some documents had
been marked in evidence and the cross-examination of the Plaintiff
and on behalf of defendants other than Defendant No.3 was
complete. Defendant No.3 had filed his Evidence Affidavit. The
documents of the 3rd Defendant had however not been marked and
his cross-examination yet remained to be completed.

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3.The reason for dismissal was the non-appearance of the
Plaintiff and her Advocate. This is explained now in the Affidavit of
Support of the present Notice of Motion and, in particularly, from
paragraph 10 onwards. In this paragraph, the Plaintiff states that her
Advocates had, for various personal reasons, expressed their
inability to continue representing the Plaintiff. They asked her to
take back papers and make alternate arrangements. The Plaintiff
says that she is senior citizen, today over 75 years old, and that she
has several physical ailments for which she had knee surgeries twice
in 2014 and was bedridden for a considerable part of 2013-2014.
She has a number of other ailments that restrict her mobility and
make it difficult for her to pursue such matters. Given all these
causes, she was in 2014 unable to appoint a new Advocate in a
timely fashion. One of her earlier Advocates resumed work in
January 2015. The Plaintiff learnt of this in March 2015. She asked
her earlier Advocate to take up her matter. Her earlier Advocate
agreed. Then, on checking the status, it was found that the Suit has
been dismissed for default.

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4.It is in these circumstances that I am asked to restore the Suit
to file. Ms. Shastri appearing for some of the Defendants and Mr.
Prabhu appearing for the other Defendants oppose the grant of

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904-NMT NO.69-2015.DOC

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relief. I realise that there is delay. However, having regard to the
considerable progress made in the Suit which was nearing
completion of the trial, I think this is appropriate case to grant the
Plaintiff relief, especially having regard to the statements made in
the Affidavit in Support of this Notice of Motion. At the same time
and in fairness to the present Advocates and their clients, care must
be taken to ensure that no additional latitude is needlessly granted
now to the Plaintiff. Learned Advocate for the Plaintiff immediately
agrees not to seek any adjournments and not to allow the matter to
go by default even once hereafter.

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5.In view thereof the Notice of Motion is made absolute in
terms of prayer clauses (a) and (b). The Suit shall be listed on 4th
April 2016 for directions for referring the matter to a Commissioner
for completing cross-examination of the 3rd Defendant. Having
regard to the circumstances of the case, the costs of the
commission for the purposes of completing the 3rd Defendant’s
examination will have to be borne by the Plaintiff. Learned
Advocate for the Plaintiff specifically agrees to this. This does not
mean that the cross-examination can be needlessly prolonged or
continue at a leisurely pace either. If I find that is happening, this
order of the costs being borne by the Plaintiff will be revisited. In
addition, that cross examination on commission will be in a time
bound manner so that the matter is not unduly delayed. Defendants
are directed to agree upon the name of the Commissioner and to
ascertain his or her availability in advance, the intention being to
complete cross examination before the end of the present term.

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Ashalata H. Mhatre v. Chitra G. Vaidya and and Ors. K. a. Mhatre and Anr.

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Ashalata H. Mhatre v. Chitra G. Vaidya and and Ors. K. a. Mhatre and Anr.

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