Bombay High Court
Nanak S. Ghatalia vs Swati Shatischandra Ghatalia ... on 12 August, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
NIJASURE
SHANKAR Date:
NIJASURE 2022.08.20
15:04:24
+0530
2-nms-7-2019.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO.7 OF 2019
IN
CHAMBER SUMMON (L) NO.78 OF 2016
IN
TESTAMENTARY PETITION NO.457 OF 2014
Swati Satishchandra Ghatalia ...Applicant
In the matter between
Nanak S. Ghatalia ...Petitioner
Versus
Swati Satishchandra Ghatalia ...Caveatrix
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Mr. Nanak Ghatalia, Petitioner in person.
Mohammed Lokhandwala i/b. Deven Dwarkadas & Partenrs for Swati
Ghatalia.
Mr. Jaideep Milra with Ravindra Chile i/b. Harshal Ghagare for the
Petitioner in MPT No.119 of 2019 and MPT No.26 of 2015 for the
Respondent in MPT No.70 of 2019.
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CORAM : R.I. CHAGLA J
DATE : 12TH AUGUST, 2022
ORDER :
1. Heard learned Counsel for parties.
2. By the Notice of Motion No.7 of 2019 the relief sought is 1/10 2-nms-7-2019.doc for recall of the order dated 30th October, 2018 and restoration of Chamber Summons (L) No.78 of 2016 upon which time be granted to the Applicant for removal of office objections.
3. The Applicant has stated that the Chamber Summons (L) No.78 of 2016 had been taken out for recall of the order dated 24th June, 2015 passed by this Court in Chamber Summons No.133 of 2014. By the said order dated 24th June, 2015, the Chamber Summons (L) No.133 of 2014 which was filed for taking the Caveat of the Applicant on record by condoning the delay and for further interim relief was dismissed. An Appeal had been preferred which Appeal was allowed to be withdrawn by order dated 5th April, 2016 of the Appellate Bench. The Applicant had sought leave to withdraw the Appeal on the ground that the Applicant would make appropriate application before the Single Judge. Reference is made to the prior order passed by the Appellate Bench dated 4th December, 2015 by which the Probate Court was directed to proceed with the hearing of the Probate Petition and in the event, the probate is granted, the same may not be issued by the office. By the said order of the Appellate Bench dated 5th April, 2016, the limited protection granted by order dated 4th December, 2015 was continued for a period of 2/10 2-nms-7-2019.doc four weeks.
4. In the Chamber Summons (L) No.78 of 2016 taken out by the Applicants for recall of the order dated 24th June 2015, this Court by order dated 2nd May, 2016 continued the order of the Appellate Bench dated 4th December, 2015 till 24th June, 2016. Thereafter by an order dated 10th October, 2016, the Single Judge of this Court recorded that Miscellaneous Petition No.70 of 2015 was part heard along with Chamber Summons No.72 of 2014, Miscellaneous Petition No.119 of 2015, Notice of Motion No.132 of 2016 and Chamber Summons (L) No.78 of 2016. These matters were thereafter recorded as tagged together by subsequent order dated 20th December, 2016. On 1st February, 2017, this Court fixed the sequence of hearing by which the Chamber Summons for amendment was to be first taken up and then the Miscellaneous Petition No.70 of 2015 followed by a hearing on Miscellaneous Petition (L) No.2545 of 2016. These were matters pertaining to the estate of the Will of the father. There were separate proceedings pertaining to the Mother's estate which would thereafter be taken up.
5. The Applicant has stated that on 4th June, 2018, the 3/10 2-nms-7-2019.doc Advocate for the Applicant expressed inability to continue in the matter and returned the papers. Thereafter, the Applicant who is a practicing Advocate entered her own appearance in the matter. The Applicant has stated that though the aforementioned matters were to be tagged together, Chamber Summons (L) No.78 of 2016 was shown separately on the board of 30th October, 2018. The Applicant was present when the aforementioned Miscellaneous Petition No.70 of 2015 and accompanying matters other than the Chamber Summons (L) No.78 of 2016 which were shown at Serial No. 908 were called out. The Applicant was under impression that all the matters were tagged together and failed to notice separate listing of the Chamber Summons (L) No.78 of 2016 at Serial Number 946.
6. The Applicant upon checking the case status, on 31st October, 2018 learnt that the Chamber Summons (L) No.78 of 2016 was dismissed for default on 30th October, 2018. On 2nd November, 2018, the Applicant mentioned the Chamber Summons (L) No.78 of 2016 pursuant to which this Court had recorded the statement of the Counsel for the Applicant that, a Chamber Summons or other appropriate Application for restoration will be filed and served on or before 13th November, 2018. It was further recorded that in the 4/10 2-nms-7-2019.doc meantime so as to maintain the parties in status quo and to prevent irretrievable and irreversible prejudice to the proposed caveatrix, the Registry will not issue the formal Probate sought for in the Testamentary Petition until further orders of this Court.
7. The Applicant has stated that it is due to inadvertence that the Applicant had not been present when the Chamber Summons (L) No.78 of 2016 was called out as it was separately listed, though the Applicant was present when Miscellaneous Petition No.70 of 2015 with accompanying matters were called out. Accordingly, the present Notice of Motion has been taken out for restoration of the Chamber Summons (L) No.78 of 2016.
8. Mr. Ghatalia who appears in person for the original Petitioner has vehemently opposed grant of the relief sought for in the Notice of Motion. He has submitted that there is negligence on the part of the Applicant to remove the office objections from 2016 till the date of dismissal of the Chamber Summons. Thus there was gross delay in removing the office objections and getting the Chamber Summons numbered. He has referred to the order dated 30th October, 2018 by which this Court had dismissed the Chamber 5/10 2-nms-7-2019.doc Summons with costs, both on the ground that there was default on the part of the Applicant as well as she had not cared to remove office objections for over two years. The department was directed to proceed with the Testamentary Petition for grant of probate. He has submitted that law is well settled that negligence on the part of the Applicant cannot be excused and that the Chamber Summons was correctly dismissed. Accordingly, the Notice of Motion for restoration of the Chamber Summons requires to be rejected. He has submitted that the original Petitioner is suffering grave prejudice in that the parties have been directed by order dated 2nd November, 2018 i.e. nearly four years back, to maintain status quo to prevent irretrievable and irreversible prejudice to the proposed caveatrix. The Registry was directed to not issue the formal probate sought in the Testamentary Petition until further orders of the Court. He has submitted that in any event there is no merit in the Chamber Summons (l) No.78 of 2017 which seeks recall of the order dated 24th June, 2015. By the said Order, the Single Judge had considered the application for taking on record the Caveat by condoning delay in filing the Caveat. This Court had considered that the Caveatrix has elected to receive the bequests and no question remains for her to challenge the testamentary disposition by which the bequests were made to her. He 6/10 2-nms-7-2019.doc has submitted that accordingly there is no merit in Chamber Summons (L) No.78 of 2016.
9. Having considered the rival submissions, the present Notice of Motion seeks recall of the order dated 30th October, 2018 and restoration of Chamber Summons (L) NO.78 of 2016 and for grant of time to remove office objections. It can been seen from the order dated 30th October, 2018 that this Court had considered that there is substantial delay in removing office objections by the Applicant i.e. an over two year delay. This was apart from the fact that the Applicant has not made an appearance when the Chamber Summons was called out. The Chamber Summons was accordingly dismissed with costs. In Paragraph 5 of the said order, this Court had made it clear that no application for restoration will be entertained without a formal application being filed and served on the Testamentary Petitioner who also appears in person. Pursuant to the said Order, the Applicant has taken out the present Notice of Motion.
10. It is to be noted that on 30th October, 2018, the Chamber Summons (L) No.78 of 2016 was separately listed from the other matters. By an order dated 20th December, 2016, this Court 7/10 2-nms-7-2019.doc had recorded that all the matters are tagged together which included Chamber Summons (L) No.78 of 2016. However, inspite of the tagging of matters, the Chamber Summons (L) No.78 of 2016 was not listed with the other matters on the date i.e. 30th October, 2018 when this Court dismissed the Chamber Summons for default. The Applicant has stated that she was present when the matters were called out at a prior serial number 908 and that she presumed that the Chamber Summons (L) No.78 of 2016 was listed along with the other matters i.e. Miscellaneous Petition No.70 of 2015 with accompanying matters. Thus, benefit of doubt is to be given to the Applicant that through oversight she had not noticed, the Chamber Summons (L) No.78 of 2016 which was separately listed at Serial Number 946.
11. Mr. Ghatalia is correct in submitting that the order dated 30th October, 2018 had also considered the fact that the Applicant had not removed office objections for over two years and that also weighed with Court in dismissing the Chambers Summons with costs. However, this Court whilst passing the order dated 30th October, 2018, considered that there may be a formal application for restoration being filed and which will have to be served on the 8/10 2-nms-7-2019.doc Testamentary Petitioner who also appears in person. It is only then that such formal application will be entertained. This in fact has been done in the present case by filing of the present Notice of Motion which is served on the Testamentary Petitioner who has filed his Affidavit opposing grant of relief in the Notice of Motion.
12. In view thereof, it would be necessary that the relief sought for in the Notice of Motion is considered favourably or else the Applicant would suffer grave prejudice on account of the office error in the separate listing of Chamber Summons (L) No.78 of 2016. The Chamber Summons (L) No.78 of 2016 is accordingly required to be restored. However, considering that there is a failure to remove office objections for over two years which this Court had also considered in dismissing the Chamber Summons with costs, further costs are required to be imposed on the Applicant. Accordingly, the relief sought for in the Notice of Motion is being granted subject to payment of costs of Rs.30,000/- by the Applicant in favour of "THE FATHER'S HOUSE", Flat No. v 604, 6th Floor, Ekta Vivek Co Op Housing Society Ltd. 168, Kanderpada CST No.169, A New Link Road, Dahisar West, Mumbai 400 068 which shall be paid within a period of two weeks from the date of 9/10 2-nms-7-2019.doc uploading of this Order. Hence the following order:-
(i) The Chamber Summons (L) No.78 of 2016 is restored to file by recall of the order dated 30th October, 2018, subject to payment of aforementioned costs.
(ii) The Applicant is granted two weeks time from restoration of the Chamber Summons to remove office objections. In the event of failure to remove the office objections, the Chamber Summons (L) No.78 of 2016 shall stand rejected without further reference to the Court.
(iii) The Notice of Motion is accordingly disposed of.
(iv) Rest of matters are stood over to 16th September, 2022 at 2.30 p.m. [R.I. CHAGLA J.] 10/10