1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 362 OF 2010 Jagdish Kantilal Shah. .. Petitioner Vs. Sanjay Murlidhar Bajaj & Anr. .. Respondents -- Ms Alpana Shah i/by Smt. Bhairavi N. Pathak for the Petitioner. -- CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010 P.C: . Heard the learned counsel appearing for the Petitioner. The Petitioner in this Writ Petition is the 2nd Plaintiff. The learned counsel appearing for the Petitioner pointed out that the 1st Plaintiff died on 31st January, 2004. The learned counsel states that the notice has been duly served to the Respondents and an affidavit of service has been filed. 2. A Chamber Summons taken out by the Petitioner for bringing on record the legal representatives of the deceased Defendant has been dismissed by the learned Trial Judge by the impugned order. 2 3. In the affidavit in support of the Chamber Summons, the Petitioner stated that in May, 1996, the Petitioner became aware that the sole defendant had expired. By the letter dated 28th May, 1996, the Advocate for the Petitioner called upon the Advocate for the deceased defendant to furnish information regarding names and the addresses of the legal representatives of the deceased Defendant. By a letter dated 1st July, 1996, Advocate of the deceased defendant informed the Advocate for the Petitioner that the Defendant died on 26th April, 1996. He pointed out that the deceased had executed a Will dated 22nd March, 1995 under which the Respondents herein have been appointed as the Executors of the said Will along with one Murlidhar Bajaj. Before the Chamber Summons could be taken out, by letter dated 28th December, 1996, the Advocate for the deceased defendant informed that the said Murlidhar expired on 17th December, 1996. Thereafter, the Advocate for the Petitioner called upon the concerned Advocate to give inspection of the Will. Even before inspection could be given, to avoid further delay, the Chamber Summons was taken on 7th January, 1997. The correspondence referred to in the affidavit in support of the Chamber Summons has been placed on record along with the said affidavit. 4. By the impugned order, the learned Judge rejected the Chamber Summons on the ground that there was no explanation for delay. The learned counsel appearing for the Petitioner submitted that the Respondents did not appear before the Trial Court and contest the said 3 Chamber Summons. She submitted that a clear error has been committed by the learned Trial Judge. 4. I have considered the submissions. The date of death of the Defendant is 26th April, 1996. The Petitioner became aware about the death of the Defendant in May, 1996. In July, 1996, the Petitioner became aware about the date of death and the names of the Executors appointed under the Will of the defendant. In Paragraph 4 of the affidavit in support of the Chamber Summons, it is pointed out that the Petitioner was busy in attending to the original 1st Plaintiff who was sick. It is disclosed that the original 1st Plaintiff was very old. The Chamber Summons was filed on 7th January, 1997. The period of limitation expired on 25th August, 1996 and the Chamber Summons was moved on 7th January, 1996. The delay in filing this Petition has been explained in paragraphs 8 to 10 of the Petition. 5. A liberal and justice oriented approach is to be adopted by the Trial Court while considering the prayer for condonation of delay. Though a sufficient cause for condonation of delay was made out, the learned Trial Judge has adopted a hyper technical approach. 6. Hence, the Petition must succeed and I pass the following order. (a) The impugned order dated 29th April, 1998 is quashed 4 and set aside and the Chamber Summons No.48 of 1997 is made absolute in terms of the prayer Clauses (a) and (b). (b) Amendments to be carried out within four weeks from the date on which the writ of this Court is received by the Trial Court. (A.S.OKA, J)