vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.168 OF 2008 APPEAL FROM ORDER NO.168 OF 2008 APPEAL FROM ORDER NO.168 OF 2008 Rukmini Chhaganlal Sevak Sharma & Ors. ... Appellants V/s. National Textile Corporation & Ors. ... Respondents Mr.V.R. Tripathi a/w Ms.Maya Dave for Appellants Ms.Nandini Khaitan for Respondents CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JULY 22, 2008 JULY 22, 2008 JULY 22, 2008 P.C.: P.C.: P.C.: . The appellants have filed the present Appeal against the orders passed by the Principal Judge, City Civil Court, Bombay dated 16.1.2008. By this order, the learned Judge has dismissed the Chamber Summons filed by the appellants for bringing on record the heirs of the appellants and for setting aside the abatement. Undisputedly, the appeal was filed in 2004 by one Chhaganlal Sevak Sharma, who was the husband of the present appellant No.1 and father of the appellant Nos.2 and 3 in this Appeal. He died on 8.10.2006. The order of abatement was passed on 29.10.2006. However, the heirs filed the Chamber Summons only on 26.12.2007, 13 months after the death of Chhaganlal Premchand Sevak Sharma. 2. The appeal Court has held that no reasons are : 2 : given for setting aside the abatement and that there is a delay of several months for which reason the abatement cannot be set aside. 3. The learned advocate for the appellants submits that there has been a fault on the part of the advocates appearing for the appellants and it is a settled position of law that the negligence of advocates should not adversely affect the rights of the parties. He, therefore, submits that the abatement be set aside and the appellants be impleaded in the place of Chhaganlal Premchand Sharma as his legal heirs and representatives. He urges further that the right to sue still survives. 4. The learned counsel appearing for the Respondents herein submits that the gross delay in approaching the Court should not be condoned. She further submits that even though the appellants were well aware of the death of Chhaganlal Premchand Sharma, they had not bothered either through their previous advocate or the advocate who came on record after the order of abatement was passed. She therefore submits that the order impugned need not be interfered with. 5. In my opinion, there is no doubt that both the appellants and their advocates have been negligent in the matter. It appears that the appellants had informed : 3 : their advocate about the death of Chhaganlal Premchand Sevak Sharma despite which no action was taken to bring on record his heirs on record. However, in the facts and circumstances of the present case, I am of the view that since the respondents have been continuing in the premises alongwith Chhaganlal Premchand Sevak Sharma for a number of years, they must be given an opportunity to contest the appeal. In any event the lapses on the part of an advocate should not have the effect of defeating the appellants’ right to sue. 6. The appeal is, therefore, allowed subject to payment of costs of Rs.1000/- to the Maharashtra State Legal Services Authority within two weeks from today. The appellate Court will pass an order impleading the appellant Nos.1, 2 and 3 as the appellants in place of Chhaganlal Premchand Sevak Sharma as they are his legal heirs and representatives. 7. Appeal is disposed of accordingly.