Bombay High Court
Balraj Narsaiyya Jadal vs Sudhir Ramchandra Gogi on 3 September, 2025
2025:BHC-OS:14421
Sumedh 2-ial-19931-2023-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.19931 OF 2023
IN
TESTAMENTARY SUIT NO.9 OF 1997
IN
TESTAMENTARY PETITION NO.368 OF 1996
1. Balraj Narsaiyya Jadal ]
age 62 years, Occupation: Business ]
2. Abhishek Balraj Jadal ]
Age 33 years, Occupation: Service ]
Through his Power of Attorney Holder ]
Balraj Narsaiyya Jadal ]
Age 62 years, Occupation: Business ]
residing at Jade Gardens, 502, "I-Wing"]
MIG Colony, Group - III, Bandra - (East)]
Mumbai 400 051. ]
3. Akshay Balraj Jadal ]
Age 26 years, Occupation: Student ]
Through his Power of Attorney Holder ]
Balraj Narsaiyya Jadal ]
Hindu, Indian Inhabitant of Mumbai, ]
Age 62 years, Occupation: Business ]
residing at Jade Gardens, 502, "I-Wing" ]
MIG Colony, Group - III, Bandra - (East)]
Mumbai 400 051 ] ...Applicants/Org.
Defendants
In the matter between
Sudhir Ramchandra Gogi ]
Age Adult, Occupation: Consultant ]
Sole Executor named under the ]
WILL of the deceased Hindu, Indian ]
Inhabitant of Mumbai, residing at ]
at 1D-49/451, 1st Floor, Middle Income ]
Group, VI th Co-operative Hsg. Society Ltd. ]
Gandhi Nagar, Bandra (East), ]
Mumbai 400 051. ]... Petitioner.
Digitally
signed by
SUMEDH
SUMEDH
NAMDEO
NAMDEO
SONAWANE
1/8
SONAWANE Date:
2025.09.04
09:53:20
+0530
::: Uploaded on - 04/09/2025 ::: Downloaded on - 04/09/2025 21:27:14 :::
Sumedh 2-ial-19931-2023-J.doc
versus
Navita Balraj Jadal (since deceased) her ]
Legal heirs ]
1. Balraj Narsaiyya Jadal ]
Age 62 years, Occupation: Business ]
2. Abhishek Balraj Jadal ]
Age 33 years, Occupation: Service ]
Through his Power of Attorney Holder ]
Applicant no.1 abovementioned ]
3. Akshay Balraj Jadal ]
Age 26 years, Occupation: Student ]
Applicant No.1 abovenamed ]
All Hinidu, Indian Inhabitant of Mumbai, ]
All, residing at Jade Gardens, 502, "I-Wing" ]
MIG Colony, Group - III, Bandra - (East), ]
Mumbai 400 051. ]... Defendants.
Ms. Ankita Singhania a/w. Adv. Manthan Rawat, Adv. Vinod Shejwal
i/by Akshay R. Kapadia for the Applicants.
Mr. Prabhu Velar a/w. Adv. Bhakti Patil for the Respondent
CORAM : KAMAL KHATA, J.
RESERVED ON : 8th August, 2025.
PRONOUNCED ON : 3rd September 2025.
JUDGMENT:
1) The present Interim Application under Order IX, Rule 13
of the Code of Civil Procedure, 1908 seeks to set aside the ex parte
order dated 7th January 2013 passed by this Court. By the said order,
the Testamentary Suit and Petition were made absolute, granting
Probate of the Will of the deceased Ramchandra Shakarro Gogi dated
Sumedh 2-ial-19931-2023-J.doc
29th May 1992 in favour of the Plaintiff.
2) Ms. Ankita Singhania, learned counsel for the Applicant,
submits that the Order must be set aside as it was obtained by
misrepresentation. She refers to paragraph No.3 of the Order dated
7th January 2013, where the Court recorded that, after the original
Caveatrix expired, the Chamber Order was served on the Defendant-
Respondents, and that they had refused to accept service. The Court
therefore observed that the refusal of service by the heirs of the
original Caveatorix/Defendant constituted due service.
3) The undisputed facts are that on 21 st May 1996, the
original Plaintiff filed a Testamentary Petition No.368 of 1996
seeking Probate of the Will of Shri Ramchandra Shakarro Gogi. The
estate of the deceased comprises of Flat No.D-49, 1st Floor, Middle
Income Group VI th Cooperative Hsg. Soc. Ltd. Gandhi Nagar, Bandra
East, Mumbai-4000051. The Testamentary Petition was served on
the original Defendant, Late Navita Balraj Jadal @ Smita
Ramchandra Gogi, who filed Caveat opposing the Grant. The Caveat
was duly accepted and the Testamentary Petition was converted into
Testamentary Suit No.9 of 1997. A written statement was filed, issues
were framed and affidavits of evidence - including of an attesting
witness - were filed. During her illness, the Defendant or her children
could not pursue the litigation. On 29th August 2012, the Original
Sumedh 2-ial-19931-2023-J.doc
Defendant expired. Her husband and children, being unaware of the
litigation papers, could not coordinate with their Advocates. The
Plaintiff then took out a Chamber Summons to add the legal heirs of
the original Defendant.
4) Ms. Singhania submits that inspection of records
revealed no affidavit of service showing that Chamber Summons was
served on the present Applicants. The affidavit of service dated 8 th
September 2011 pursuant to the Order dated 4 th July 2011 mentions
incorrect address- flat No.504 instead of flat No. 502, where the
Defendant was actually residing.
5) She further submits that on 18th November 2022, when
the Applicant objected to the transfer of the shares in favour of the
Plaintiff, the Plaintiff disclosed the existence of the Order dated 7 th
January 2013. Admittedly, in MHADA records, the flat continued to
stand in the name of Mr. Ramchandra Shakarro Gogi.
6) The Applicants thereafter engaged Advocates to trace the
records but were unsuccessful. Since the building is likely to undergo
redevelopment, the Applicant seeks interim relief of status quo in
respect of corpus funds and transit accommodation, which the
plaintiff would otherwise claim under the Probate.
7) Mr. Prabhu Velar, learned Advocate for the Respondent,
submits that, the Respondent is the original Plaintiff and the son of
Sumedh 2-ial-19931-2023-J.doc
the deceased; the Applicants are heirs of his sister. He contends that
the Application is barred by limitation since Probate was granted on
24th December 2014. He further submits that the Applicants' claim of
ignorance is unbelievable in view of the following:
8) Issues were framed by Order dated 13 th October 2011. The
filing of Plaintiffs' documents and affidavit of evidence were recorded
by the Order dated 8th December 2011. The attesting witness's
presence was recorded by Order dated 9th January 2012. The
Defendant's demise was recorded in the Order dated 29 th November
2012. The Applicants' claim that packets were wrongly sent to Flat
No.504 is baseless, since subsequent service at Flat No.502 was duly
effected and the Affidavit of Service dated 18th December 2012
records remarks "refused". Counsel submits that the Application is a
mala fide attempt to harass and extract money from the Respondent.
The Applicants have offered no justification for 10 years delay in the
Affidavit in Support of the Interim Application.
9) Heard the learned Advocates and perused the records.
10) This is yet another case driven by greed. It is
inconceivable that the Applicants were unaware of proceedings
actively defended by the original Defendant - mother of the
Applicant. No explanation is given as to what steps her husband and
children took after her demise. The objection coincides only with
Sumedh 2-ial-19931-2023-J.doc
redevelopment, suggesting an attempt to extract money. There is no
material to show that the mother's Advocates failed to communicate
with the Applicants. The grounds are clearly insufficient to set aside
the order.
11) Reliance on one wrongly-addressed packet (Flat 504
instead of 502) is misplaced, since subsequent communications were
served at the correct address. There is no evidence that the
Applicants were genuinely unaware of the proceedings. The law on
limitation is settled: limitation runs from the date of grant of Probate,
not from the date of knowledge. Reliance is placed on Lynette
Fernandes v. Gertie Mathias1in support of the contention.
12) I find this application nothing else but a gamble and
deserve imposition of exemplary costs. In this regard it would be
profitable to refer to the Supreme Court decision in Dnyandeo Sabaji
Naik v. Pradnya Prakash Khadekar , (2017) 5 SCC 496 : (2017) 3 SCC
(Civ) 189 : 2017 SCC OnLine SC 211 at page 504
13. This Court must view with disfavour any attempt by
a litigant to abuse the process. The sanctity of the
judicial process will be seriously eroded if such attempts
are not dealt with firmly. A litigant who takes liberties
with the truth or with the procedures of the Court should
be left in no doubt about the consequences to follow.
Others should not venture along the same path in the
hope or on a misplaced expectation of judicial leniency.
(2018) 1 SCC 271 : 2017 SCC OnLine SC 1296 at page 283
Sumedh 2-ial-19931-2023-J.doc
Exemplary costs are inevitable, and even necessary, in
order to ensure that in litigation, as in the law which is
practised in our country, there is no premium on the
truth.
14. Courts across the legal system--this Court not being
an exception--are choked with litigation. Frivolous and
groundless filings constitute a serious menace to the
administration of justice. They consume time and clog
the infrastructure. Productive resources which should be
deployed in the handling of genuine causes are
dissipated in attending to cases filed only to benefit from
delay, by prolonging dead issues and pursuing worthless
causes. No litigant can have a vested interest in delay.
Unfortunately, as the present case exemplifies, the
process of dispensing justice is misused by the
unscrupulous to the detriment of the legitimate. The
present case is an illustration of how a simple issue has
occupied the time of the courts and of how successive
applications have been filed to prolong the inevitable.
The person in whose favour the balance of justice lies has
in the process been left in the lurch by repeated attempts
to revive a stale issue. This tendency can be curbed only
if courts across the system adopt an institutional
approach which penalises such behaviour. Liberal access
to justice does not mean access to chaos and indiscipline.
A strong message must be conveyed that courts of justice
will not be allowed to be disrupted by litigative strategies
designed to profit from the delays of the law. Unless
remedial action is taken by all courts here and now our
society will breed a legal culture based on evasion
instead of abidance. It is the duty of every court to firmly
deal with such situations. The imposition of exemplary
costs is a necessary instrument which has to be deployed
to weed out, as well as to prevent the filing of frivolous
cases. It is only then that the courts can set apart time to
resolve genuine causes and answer the concerns of those
who are in need of justice. Imposition of real time costs is
Sumedh 2-ial-19931-2023-J.doc
also necessary to ensure that access to courts is
available to citizens with genuine grievances. Otherwise,
the doors would be shut to legitimate causes simply by
the weight of undeserving cases which flood the system.
Such a situation cannot be allowed to come to pass.
Hence it is not merely a matter of discretion but a duty
and obligation cast upon all courts to ensure that the
legal system is not exploited by those who use the forms
of the law to defeat or delay justice. We commend all
courts to deal with frivolous filings in the same manner.
[Emphasis supplied]
13) In view of the aforesaid, I find no reason to set aside the
impugned order after a delay of 3786 days. Accordingly, the Interim
Application is dismissed with costs of Rs.1,00,000/- payable to the
Respondents within a period of two weeks from the date of uploading
of this Judgment on the website of the Bombay High Court.
(KAMAL KHATA, J.)
14) At this stage, learned Advocate for the Applicant
requested for an additional two weeks time to pay the costs. The
request is accepted.
(KAMAL KHATA, J.)
