Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.1753/2019 ..1.. Suit No.7861/2004
CNR No.MHCC010047992019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1753 OF 2019
IN
SUIT NO.7861 OF 2004
Dilip Dattatray Pawaskar and others .. Plaintiffs
Versus
Sudhakar Dattatraya Pawaskar .. Defendant
Mr. A. V. Pawaskar, advocate for plaintiffs
Mr. Sameer Logade, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 19th December, 2019
ORAL ORDER
Notice of motion is taken out by defendant for staying trial of
suit till final hearing and disposal of testamentary suit No.40 of 2005
pending in Hon'ble High court, Bombay.
2. It is the contention of defendant that mother of plaintiffs and
defendant has executed on or about 25.09.2000. Thereafter she expired
on 07.03.2003. Thereafter defendant herein had filed Testamentary suit
bearing No.20 of 2005. Plaintiffs herein had filed Caveat and contested
said Testamentary Petition. It was converted into suit bearing
Testamentary Suit No.40 of 2005. It was dismissed in default vide order
dated 04.02.2008. Defendant herein filed notice of motion No.74 of
2014 for restoration of said Testamentary Suit and in pursuance of
order of Hon'ble High dated 05.01.2015 Testamentary suit has been
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restored to file. It is further contended that subject to adjudication of
Testamentary Suit shares of plaintiffs and this defendant will be
changed therefore, present partition suit cannot be tried until disposal
of Testamentary suit. Accordingly, he made prayer in above terms.
3. Plaintiffs filed reply to present notice of motion and contended
that this court has jurisdiction to try present suit and it is not necessary
to wait till disposal of testamentary suit. However, it is not disputed
that testamentary suit was filed by the defendant. It is contended that
defendant wants to delay hearing of the suit and wants to deny justice
to the plaintiffs. Accordingly, they prayed for dismissal of notice of
motion.
4. Defendant filed rejoinder to reply of plaintiffs. It is contended
that in accordance with Will, shares of parties will change and
testamentary suit is still pending in the Hon'ble High of Bombay and
reiterated to allow notice of motion.
5. Perused notice of motion, affidavit in support of it, reply of
plaintiffs, rejoinder of defendants. Heard respective counsel for parties.
6. I would like to mention that in affidavit in support of notice of
motion defendant has not specifically mentioned about the subject
matter of the testamentary suit No.40 of 2005. He has not annexed copy
of testamentary petition to ascertain as to whether subject matter of
said petition and that in present suit are identical. In absence of same
contention of the defendant cannot be considered on merits. I am
inclined to dismiss present notice of motion for want of certified copy of
testamentary petition. However, it is just to grant liberty to defendant to
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take out fresh notice of motion annexing the relevant documents.
Hence, pass following order.
ORDER
1. Notice of Motion No.1753 of 2019 stands dismissed with liberty
to defendant to take out fresh notice of motion annexing the
relevant documents.
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 19.12.2019 Gr. Bombay
Typed on : 19.12.2019
HHJ signed on :
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N/M No.1753/2019 ..4.. Suit No.7861/2004
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.12.2019
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
19.12.2019
JUDGMENT/ORDER signed by P.O.
on
20.12.2019
JUDGMENT/ORDER uploaded on 20.12.2019
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