1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTOIN CHAMBER SUMMONS NO.52 OF 2009 IN TESTAMENTARY SUIT NO.8 OF 2004 IN TESTAMENTARY PETITION NO.103 OF 2002 Morgan Herman D’Mello ..Plaintiff. Vs. Joe D’Souza ..Defendant. ..... Mr. Mark D’Mello for the Plaintiff. None for the Defendant. ..... CORAM : DR. D.Y. CHANDRACHUD, J. 19th June, 2009. P.C. : 1. The learned advocate appearing on behalf of the Plaintiff states that the Chamber Summons has been served on the Defendant and he undertakes to file an affidavit of service within a period of one week from today. 2. The Chamber Summons has been taken out for a direction permitting the Plaintiff to examine a further witness and it has been 2 stated in paragraph 3 of the affidavit in support that the Plaintiff desires to examine the attesting witness to the will of the deceased. In the previous order dated 13th March, 2009, S.C. Dharmadhikari, J. observed that the Defendant and his advocate have been duly served and that despite liberty being granted to the Defendant to come forward and cross examine the Plaintiff, he had failed to avail of the opportunity. In the circumstances, the Court directed that the evidence of the Plaintiff and Defendant shall stand closed more so since the advocate for the Plaintiff had stated that no other witness was to be examined by the Plaintiff. 3. In the affidavit in support it has been stated that the statement of the advocate was made without proper instructions and that the Plaintiff desires to examine Mr. Sydney D’Souza who was the attesting witness to the will of the deceased. Having regard to the interests of justice, it would be necessary to allow the request which has been made by the Plaintiff. No reply has been filed by the Defendant opposing the Chamber Summons. The Chamber Summons is accordingly made absolute in terms of prayer clause (a) and the Plaintiff is accordingly permitted to examine 3 Mr.Sydney D’Souza who is alleged to be the attesting witness to the will of the deceased. To be placed on Board on 3rd July, 2009 for recording of further evidence. *****