Bombay High Court
Desmond A. D'Souza vs Jude D'Souza on 5 February, 2021
Author: G.S. Patel
Bench: G.S. Patel
14-NMTL-161-2019 IN TS-198-2016 IN TP-1853-2016.DOCX
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION (L) NO. 161 OF 2019
IN
TESTAMENTARY SUIT NO. 198 OF 2016
IN
TESTAMENTARY PETITION NO. 1853 OF 2016
Jude D'souza ...Applicant
In the matter between
Desmond A D'souza ...Plaintiff
Versus
Jude D'souza ...Defendant
Mr Ashutosh Kaushik, i/b Kaushik & Co, for the Applicant in
NML/161/2019.
Mr Tejas Vora, i/b DR Mishra, for the Respondent.
Shephali Mormare Digitally signed CORAM: G.S. PATEL, J by Shephali Mormare Date: 2021.02.08 10:59:33 +0530 DATED: 5th February 2021 PC:-
1. This is an application by the Defendant. The prayer is that the Court should appoint a handwriting expert under Section 45 of the Evidence Act 1872, to opine on the signatures of the deceased Pierre Jean D'Souza on the writings dated 5th August 2009 and 23rd July 2009. The prayer is that these signatures should be compared with specimen signatures on a purchase deed dated 20th April 1993.Page 1 of 4
5th February 2021 14-NMTL-161-2019 IN TS-198-2016 IN TP-1853-2016.DOCX
2. The Motion was filed on 1st August 2019. It seems that on 4th July 2019, both sides said that the evidence was complete and was closed and the matter could now be taken up for final hearing. Therefore, when the Motion came up on 3rd September 2019, AK Menon, J noted the statement of 4th July 2019, and dismissed this Motion. The Defendant carried the matter in appeal. There is an order of 19th January 2021 of the Appeal Court. It remanded the Motion with a request that the Motion be disposed of before 5th February 2021 on merits, keeping all contentions open.
3. The matter was last listed before me on 3rd February 2021. At the request of the parties, I kept it today. I indicated that I would readily allow the Motion and give directions to the handwriting expert to inspect the Will and take photographs. However, I made it abundantly clear that the handwriting expert would not be a Court witness and would not be appointed by the Court. The Defendant was at liberty to engage a forensic expert at his cost. I was prepared to allow the present Notice of Motion as an application to that effect, accompanied by the necessary directions. Mr Kaushik for the Applicant-Defendant sought time to identify an expert of his client's choice.
4. The matter was then placed today.
5. I am now told that the Defendant wishes to consult one Mr Dipak Wagle, the Director of the Truth Labs, Mumbai. However, the request by Mr Kaushik himself is that the application be deferred because the Defendant also want to make an application to have the Page 2 of 4 5th February 2021 14-NMTL-161-2019 IN TS-198-2016 IN TP-1853-2016.DOCX Citizen Co-operative Credit Bank, Bandra Branch, bring into Court certain bank records as specimens for the proposed study and opinion by Mr Wagle.
6. This Motion is therefore being adjourned at the request of the Applicant-Defendant, and not at the instance of either the Plaintiff, represented by Mr Vora, or at my instance.
7. Mr Kaushik's submission is that a separate Interim Application will now be required, addressed to the Citizens' Co-operative Credit Bank, and that both the present Notice of Motion and the fresh Interim Application should be taken up together for a common order so that directions can conveniently be passed. This will ensure that the handwriting expert does not need to visit the Court twice, but on a single visit can inspect the original bank records and the two disputed documents in question (both are deposited in Court).
8. As yet, there is no Interim Application against the bank.
9. I am told that an appropriate Interim Application will be filed by Monday, 8th February 2021, and will be served immediately thereafter. Having regard to the directions of the Appeal Court, I will list this Motion along with the fresh Interim Application on 15th February 2021 high on board.
10. In the meantime, I am making it clear that the Plaintiff is not directly or indirectly to contact Mr Wagle or anybody else in his company.
Page 3 of 45th February 2021 14-NMTL-161-2019 IN TS-198-2016 IN TP-1853-2016.DOCX
11. The Defendant also proposes to make an Interim Application to recall one of the witnesses. He is at liberty to file a separate Interim Application for that purpose. This will also be listed on 15th February 2021.
12. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 4 of 4 5th February 2021