:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 126 OF OF MOTION NO. 126 OF OF MOTION NO. 126 OF 2008 2008 2008 IN IN IN MISC. MISC. MISC. PETITION NO. 64 OF 2005 PETITION NO. 64 OF 2005 PETITION NO. 64 OF 2005 IN IN IN PETITION PETITION PETITION NO. 877 OF 1998 NO. 877 OF 1998 NO. 877 OF 1998 Cowasjee Nusserwanji Dinshaw. ... Petitioner. V/s. Suresh S. Thorawade. ... Respondent. Mrs. Aliya Pathan for the Petitioner. Mr. D.S. Mhaispurkar for the Respondent. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 17TH 17TH 17TH OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . This is a Motion to recall the order dated 12th September 2008. The said order reads as under :- "Certain witnesses have been examined. P.W.4 desires to file an additional affidavit in evidence with regard to the signature of missing attesting witness. P.W.4 shall be entitled to file an additional affidavit in evidence subject to cross examination. The Commissioner, already appointed and who has recorded the cross examination, shall continue his commission until the completion of entire evidence." :2: 2. The grievance of Shri Mhaispurkar, appearing for the Respondent C.N. Dinshaw is that the order came to be passed without hearing the Respondent and no notice was given of the application which was made on 12th September 2008. 3. Having perused the Motion and the affidavit in support so also the order, I am of the view that interest of justice will be subserved if a clarification is given that although the Court has permitted filing of an additional affidavit by P.W.4 so also permitted cross-examination of the said witness by the Respondent the permissibility of such a course of action in law and the evidentiary value of material placed before the Commissioner which will be decided when the Testamentary Petition is heard finally. Without prejudice to the rights and contentions of the Respondent, he may cross examine P.W.4 and merely because cross-examination of P.W.4 takes place will not be construed as waiver of the plea raised by the Respondent. With these clarifications, the Motion is disposed of. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)