1 NMT.106.10-TS.22.89-TP.509.87 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 106 OF 2010 IN TESTAMENTARY SUIT NO. 22 OF 1989 IN TESTAMENTARY PETITION NO.509 OF 1987 Mrs. Vivienne Maria Pereira ...Petitioners Vs. Gene Isaac Sampson & Ors. ...Caveators/Defendants Mr. Owen Menezes i/b. Johnson Jhon for Plaintiffs/Petitioners CORAM : SMT. ROSHAN DALVI, J. DATED : 15TH SEPTEMBER, 2010 P.C. : 1. This Petition has been filed since 1987. Thereafter Administration Suit has been filed between the parties being Suit No.3419/1988. Upon the Caveat being filed this Suit has been converted into the Testamentary Suit in 1989. Both the suits are directed to be heard one after the other. The administration suit does not appear to have come up on board along with the Testamentary Suit. The Testamentary Suit appears to have come up on board from time to time. 2. Advocate on behalf of the Plaintiff states that the Advocate who was 2 NMT.106.10-TS.22.89-TP.509.87 appearing for the Defendant appeared in the Suit and has been shown as the Advocate of the Plaintiff/Petitioner. On several dates of hearing the matter was mentioned though not on board and the Testamentary Suit has been adjourned from time to time when the Plaintiff was not represented and the Defendant’s Advocate is shown to be representing the Plaintiff. 3. There has been 1115 days delay in taking out this Notice of Motion after the Testamentary Suit has been dismissed for default. The Testamentary Suit has been dismissed for default on 6 th July 2007 when none of the parties had appeared. 4. This Notice of Motion has been served upon the Defendants as per the affidavit of service filed by the Plaintiffs. Since none appeared for the Defendants notice to the Defendants is also not mandatorily to be given under the C.P.C. 5. The parties are required to be heard on merits in the Testamentary Suit and thereafter immediately in the Administration Suit. Both the suits shall be placed on board together. 6. The Notice of Motion is made absolute in terms of prayers (a) and (b). 7. The order dated 6 th July 2007 is set aside. 8. The Testamentary Suit and Testamentary Petition are restored to file. 3 NMT.106.10-TS.22.89-TP.509.87 9. The Testamentary Suit as well as the Administration Suit shall appear on board on 4 th October 2010. 10.Issues are framed in the Testamentary Suit. The Testamentary Suit has been on board since 1989. 11.The Plaintiff shall forthwith file the affidavit of examination-in-chief of herself as also of any other witness as required. 12.The Plaintiff shall also file the affidavit of documents, if any. 13.The admissibility of the documents shall be considered on the next date of hearing. 14.The Plaintiff’s Advocate shall give notice of this order to the Defendants as well as the earlier Advocate of the Defendants who sought to represent the Plaintiffs upon mentioning the suit before the Court. (SMT. ROSHAN DALVI, J.)