SUDHIR RAMCHANDRA GOGO Vs. NAVITA BALRAJ JADAL

JUDGEMENT

(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 dtd. 7/1/2013 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 dtd. 29/5/1992 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 dtd. 7/1/2013, where the Court recorded that, after the original Caveatrix expired, the Chamber Order was served on the DefendantRespondents, 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 21/5/1996, 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 29/8/2012, the Original 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.