1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 34 OF 2009 IN SUIT NO. 23 OF 1990 IN PETITION NO. 458 OF 1989 Shri Narsingh Mukund Prabhu ...Plaintiff. Vs. Rohini Chandrakant Prabhu & Ors. ...Defendants. Mr.D.R. Mishra for the Plaintiff. Mr. S.C. Dhavan with Ms. Vaishali Choudhari for the Defendants. CORAM :- ANOOP V. MOHTA, J. DATED :- 1ST JULY, 2009. P.C.- 1. This Notice of Motion has been taken out by the Defendants and prayed as under:- a) That this Hon’ble Court be pleased to order and direct the Plaintiff Narsingh M. Prabhu to place on record of the reconstructed proceedings, copy of the affidavit of Manjunath N. Wagle dated 11th August, 1989; b) that till the said copy of the affidavit dated 11th August, 1989 of Manjunath N. Wagle is placed on record by the 2 Plaintiff, further cross-examination of the said witness Manjunath N. Wagle and other proceedings in the aforesaid suit be stayed; 2. Affidavit in reply to the Notice of Motion taken out by the Defendants, Plaintiff averred as under: - “However, I say that, to the best of my knowledge and memory, I had filed supporting affidavit of Chandra Korgu Nayak, the second attesting witness, affirmed on 9th day of August, 1989. I further say that my Advocate Shri M.P. Shukla might have also prepared the affidavit of first attesting witness Shri Manjunath Narayan Wagle along with the affidavit of Chandra Korgu Nayak. I further say that to the best of my knowledge and memory the supporting affidavit of Shri Manjunath Narayan Wagle was not filed in the records of Court in 1989 and I have not used his affidavit in 1989. I submit that the contents of affidavit of Shri Manjunath Narayan Wagle filed in 2005 and that of 1989 are same, if there is any infirmity in the said affidavits, the witness is still under Cross-Examination, the defendants can always put questions in that respect to the witness.” 3. The said advocate is no more. It appears that an un-affirmed copy of affidavit was served and based upon that Plaintiff have acted also. 3 Therefore, though the record is reconstructed, the said affidavit of the year 1989 is not part of the record. Shri Chandra Korgu Nayak also expired. 4. Therefore, there is a serious dispute about the said affidavit whether affirmed or unaffirmed, which just cannot be overlooked at this stage. The present advocate is also not in a position to deny the said facts of service of the said unaffirmed affidavit. The Plaintiff is now only denying the same with above observations. 5. Therefore, in the interest of justice, keeping all points open, I am inclined to grant this Notice of Motion in terms of prayer clause (a) restricting it to the affidavit of Manjunath Narayan Wagle, dated 11th August, 1989. No costs. (ANOOP V. MOHTA, J.)