IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.79 OF 2008 NOTICE OF MOTION NO.79 OF 2008 NOTICE OF MOTION NO.79 OF 2008 IN IN IN TESTAMENTARY SUIT NO.53 OF 1987. TESTAMENTARY SUIT NO.53 OF 1987. TESTAMENTARY SUIT NO.53 OF 1987. IN IN IN TESTAMENTARY PETITION NO.581 OF 1985. TESTAMENTARY PETITION NO.581 OF 1985. TESTAMENTARY PETITION NO.581 OF 1985. 1.Max Cajetan Travasso & Anr. Plaintiff versus Mrs.Fernandes ..Defendant Mr.Vaibhav Sugdhare i/b. Yasmin Bhansali & Co. for the Plaintiffs Ms.Varsha Palav for defendant/caveator in support of motion. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 3rd December, 2008. DATED : 3rd December, 2008. DATED : 3rd December, 2008. P.C. 1. This Notice of Motion is taken out to have the Order dated 31.3.2008 set aside. Parties have completed the pleadings. Defendants advocate filed affidavit in support of the Motion as the defendant was in London. Subsequently, another affidavit in support of the motion was filed through the defendant. Plaintiffs have filed two affidavits in reply to oppose the motion. 2. Few facts necessary for the disposal of this motion are as under: -2- . The defendant, through her Advocate admits that the matter was on board on 14.1.2008 and that the advocate for defendant was present. According to the defendant the matter was adjourned to 21.1.2008. However, it did not appear on board. Plaintiffs have stated that after 14.1.2008 matter appeared on board on 11.2.2008 and 12.2.2008. On these two dates job of recording of evidence was done. It was then adjourned to 17.2.2008. On that day arguments were heard. Matter was adjourned for judgment to 31.3.2008 and the judgment came to be delivered on 31.3.2008. On all these four dates neither the defendant nor her advocate were present in the Court. It is conceded by the learned Advocate for the plaintiffs that on these four dates name of the advocate for the defendant was not shown on board. The defendant has contended that the matter appeared on 14.1.2008 and was adjourned to 21.1.2008 and it is further contended that the matter did no appear on 21.1.2008. To this it has been the stand of the plaintiffs that on 14.1.2008 the matter was kept back by the learned Judge and thereafter, after some time the matter was called out and plaintiffs tendered -3- witness summons which were ordered to be tendered by the Court and order came to be passed on 14.1.2008. According to the plaintiffs the matter was adjoaurned for a period of four weeks. 3. It was sought to be contended before this Court that the advocate for the defendant very well knew that the matter was kept back and despite that the advocate for the defendant did not remain present when the matter was called out again and therefore it would not lie in the mouth of the defendant to say that the judgment dated 31.3.2008 was passed behind the back of the defendant and that the said Order is required to be set aside. One may accept this situation provided such thing is stated in the affidavit in reply, With the assistance of the learned advocate for the plaintiffs, I have gone through the affidavit in reply and nothing in this direction is set out in the affidavit in reply. If certainly it was the stand of advocate for plaitniffs that the advocate for the defendant knew about the keeping back of the matter and that she neglected to remain present, then such a thing should have been reflected in the affidavit in reply filed by the -4- plaintiffs. In the absence of such a specific stand in the affidavit in reply, the argument advanced across the bar and the stand taken that the advocate for the defendant left the court after the matter was kept back, and failed to remain present when it was called out again, cannot be accepted. It was primary duty of the plaintiffs to aver this fact in the affidavit in reply. In the absence of this, same cannot be accepted. 4. In view of the aforesaid discussion, the defendant has been able to show that for no fault of her the matter proceeded in her absence on the subsequent dates. It is pertinent to note that the name of the advocate for the defendant did not appear on board on four occassions between 1.2.2008 to 31.3.2008. This is admitted by the plaintiffs. If this be so, the defendant or her advocate cannot be blamed for remaining absent on all these dates. Keeping in view the aforesaid discussion, I am inclined to observe that though the proceeding of the present suit have taken place in the absence of defendant, the defendant or advocate of defendant cannot be termed as negligent in attending to the matter after 14.1.2008. In my view, in the -5- interest of justice, this is a fit case where the judgment dated 31.3.2008 is required to be set aside and an opportunity is required to be given to the defendant to contest the case on merits by cross examining the witnesses who have been examined by the plaintiffs and then attend to the matter. 5. In my view, this is a fit case where the Court should intervene and grant relief to the defendant. 6. For the reasons mentioned aforesaid I pass the following Order: ORDER . The Order dated 31.3.2008 is set aside. Suit is restored to the file of this Court. . In the facts and circumstances of the case it is clarified that the date appearing in prayer clause (a) as 5.4.2008 appears to be typographical mistake. -6- . The notice of motion is disposed of in above terms with no order as to costs. . Consequent upon the restoration of the suit to the file of this Court, the plaintiffs will have to make available the witneses who have been examined by them, for cross examination to be conducted by the advocate for the defendant, or the defendant, as the case may be. In view of above, by consent, the matter is posted for recording of evidence on 9.1.2009. On that day the plaintiffs would arrange to keep P.W.1 Mr.Max Travasso present in the Court to enable the defendant or her advocate to conduct the cross examination. . The Court is informed that suit No.834 of 1996 filed by the defendant for administration of estate of her father and mother is pending. The said suit is also to be tagged along with this Testamentary suit No.53 of 1987. It is clarified that the Court will proceed with Testamentary Suit No.53 of 1987 so that the picture will be clear and the parties can act accordingly. . Adjourned to 9.1.2009 for recording of -7- evidence. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)