1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7976 OF 2008 Sunderlalji Gupta .. Petitioner versus Mumbai Municipal Corporation .. Respondent And U.A.Parwani (since deceased) Mr.K.A.Parwani & Ors. .. Applicants Mr.Rajendra K. Yadav for the petitioner. None for the respondent Nos.2 to 8. Mr.R.A.Molandkar for respondent No.1. CORAM : A.S.OKA, J. DATE : 25th January 2010. P.C: . Heard learned counsel appearing for the petitioner. None appears for the respondent Nos.2 to 8. The order dated 12th October 2009 passed by this Court reads thus: “. The grievance of the learned counsel for the petitioner is that a chamber summons taken out by the third parties (2nd to 8th respondent) purportedly invoking Rule 10(2) of Order I of Civil Procedure Code has been decided by the trial Court as if the Court was deciding an application for bringing on record the heirs of one of the parties to the suit. He pointed out that there is no finding recorded that the third to eight respondents are either necessary or proper parties to the suit. Learned counsel for the third to eight respondents seeks time. Stand over to 1st December 2009. Till the next date the suit will not proceed.” 2. The petitioner is the original plaintiff. The chamber summons was taken out by respondent Nos.3 to 8. In the chamber summons the prayer is for adding the said respondents as party defendants to the suit filed by the petitioner. By the impugned order, the said chamber summons has been made absolute. The impugned order reads thus: “705/99: Plaintiff and Advocate absent. 2 Advocate Pharwani for applicant in Ch/s. Advocate More for BMC/Defendant. Ch/s.No.341/05 is dismissed as withdrawn. Ch/s.No.332/08 both the advocates heard. Order. Ch/s.No.332/08 is made absolute. The LR’s of the deceased allow to be taken on record. The plaintiff amend the plaint and serve the defendant with copy thereof within 14 days from date of this order. Adjourned to 10.10.2008 for direction.” 3. The learned counsel appearing for the petitioner is right when he submitted that the trial Court decided the chamber summons as if the Court was deciding an application under Order XXII of the Code of Civil Procedure, 1908 for bringing heirs of the deceased party to the suit on record. The chamber summons taken out by the concerned respondents was being contested by the petitioner. The impugned order shows non application of mind and, therefore, same is required to be quashed and set aside. 4. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 19th September 2008 is quashed and set aside and Chamber Summons No.332 of 208 is restored to the file of the trial Court. (b) The trial Court will decide the chamber summons afresh in accordance with law. (c) All contentions of the parties in the chamber summons are kept open. (d) There will be no orders as to costs. (A.S.OKA,J)