: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.169 OF 2009 IN TESTAMENTARY SUIT NO.54 OF 2000 IN TESTAMENTARY PETITION NO. 426 OF 2000 Kirit Himmatlal Mehta of Bombay .. Plaintiff v/s. Mahesh Ramesh Mehta of Bombay .. Defendant (Caveator) ......... Mr. Pankaj Kawli i/by K.K. Associates for the plaintiff Mr. Prakash Mahadik for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 25th JUNE, 2010. P.C. : 1. The defendant herein filed the caveat and the matter was listed. According to plaintiff, between the plaintiff and the defendant some understanding was arrived at and defendant promised the plaintiff to file an affidavit so as to give no objection for grant of the petition. Plaintiff claims that affidavit came to be executed by the defendant on 19th August, 2002 and : 2 : a copy of the same was given to him. It is the case of the plaintiff that the original affidavit has not been handed over to the plaintiff nor it is filed in the Court. According to plaintiff, this conduct on the part of the defendant in executing the affidavit and not placing it on record is serious and, therefore, the caveat should be dismissed. 2. Learned advocate Mr. Mahadik submitted that for the reasons mentioned in the affidavit, it was clear that the understanding arrived at between the plaintiff and the defendant could not materialise and, therefore, the affidavit has not been filed in the Court. 3. After having considered the rival submissions, I am inclined to observe that if document has not reached the Court, the Court would not be able to act upon it. If there was some understanding between the plaintiff and the defendant and that the understanding for the reasons based known to both the parties has not materialized, Court cannot take cognizance of it. If the plaintiff was interested in seeing that the caveat is withdrawn and the affidavit of no objection is filed in the Court, it : 3 : was in the interest of the plaintiff to have in his possession the original affidavit and lodge it in the Court. Since the original affidavit is not in the Court, it is not possible for this Court to investigate as to what transpired between the plaintiff and the defendant which resulted in not filing the original affidavit in the Court. 4. I am inclined to take a view that so long as original document has not reached the Court, the Court cannot take cognizance of what has transpired outside the Court. Looking to the year of the petition namely 2000, as of today, order for expeditious hearing cannot be passed. In the facts and circumstances of the case, the Notice of Motion is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)