Bombay High Court
Ashok Jessaram Lalwani vs Suresh Jessaram Lalwani on 27 April, 2016
Bench: A.S. Oka
1 of 3 APP.375.2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.375 OF 2011
IN
TESTAMENTARY SUIT NO.60 OF 2007
IN
TESTAMENTARY PETITION NO.673 OF 2007
Ashok Jessaram Lalwani Appellant
versus
Suresh Jessaram Lalwani Respondent
Mr.Kapil Moye i/by Mahendra Patel & Associates for Appellant.
Mr.A.Randeria i/by Prerak Choudhary for Respondent.
CORAM : A.S.OKA AND P.D.NAIK, JJ.
DATE : 27th April 2016
ORAL JUDGMENT (Per : A.S.Oka, J.) :
1. Called out for final hearing. By this appeal, the Appellant
(original Defendant in a testamentary suit) has challenged the
judgment and decree dated 21st April 2010 passed by learned
Single Judge in the testamentary suit. By the impugned judgment
and decree, learned Single Judge has granted Letters of
Administration of the estate of the deceased to the Respondent-
Plaintiff. The submission of learned counsel for the Appellant is
that by order dated 19th April 2011, the learned Single Judge
after noting that the Respondent had filed an affidavit in lieu of
examination-in-chief, directed the Respondent to file affidavit of
2 of 3 APP.375.2011
documents and the suit was ordered to be listed on 21st April
2011. His submission is that instead of proceeding with the
recording of evidence on 21st April 2011, the learned Single Judge
proceeded to dispose of the suit by passing a decree, which is
impugned in this appeal.
2. Learned counsel for the Respondent, on instructions, states
that the Respondent desires to step into the witness box and
adduce evidence as he has already filed affidavit in lieu of
examination-in-chief. He, therefore, states, on instructions, that
the Respondent has no objection if by setting aside the impugned
judgment and decree, the suit is remanded to the learned Single
Judge with permission to the Respondent to adduce evidence. He
submits that if necessary, the Respondent may be permitted to file
supplementary affidavit in lieu of examination-in-chief. He
submits that the hearing of the suit be expedited as the
testamentary petition is of the year 2007.
3. As far as the priority to the hearing of suit is concerned, the
matter will have to be left to the learned Single Judge. In view of
the submissions made by learned counsel for the Respondent, we
pass following order :
(a) The impugned judgment and decree dated 21st April 2011 is
set aside and Testamentary Suit No.16 of 2007 is restored to the
file;
3 of 3 APP.375.2011
(b) We direct the registry to place the suit before the learned
Single Judge taking up testamentary suits for final hearing on
Monday, 13th June 2016 under caption "for directions";
(c) It will be open for the Respondent to file supplementary
affidavit in lieu of examination-in-chief within a period of two
weeks from 13th June 2016. It will also be open for the
Respondent to file affidavit of documents within a period of two
weeks from 13th June 2016;
(d)
It will be open for the Respondent to make a prayer before
Single Judge for giving necessary priority to the hearing of the
suit. We are sure that if the learned Single Judge is satisfied that
priority deserves to be given to the hearing of the suit, he will pass
necessary orders;
(e) The appeal is partly allowed in the above terms with no
order as to costs;
(f) We make it clear that no adjudication is made on the merits
of the testamentary suit.
(P.D.NAIK, J.) (A.S.OKA, J.)
MST
