1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7827 OF 2008 Smt.Mandakini D. Bhalerao. ..Petitioner. Versus Ram Labbhya Suri Since deceased through L.Rs. 1(a) Anil Ram Labbhya Suri & others. ..Respondents ... Mr.Y.S. Bhate, Advocate i/b. Mr.S.K. Sthalekar, Advocate for petitioner. Mr.S.K. Chaurasia, Advocte i/b. Mr.A.M. Saraogi, Advocate for respondent No.1(b). ... CORAM : SMT.V.K.TAHILRAMANI,JJ DATED : 6TH MAY, 2009. P.C. :- 1. Heard the learned Advocate for the petitioner and the learned Advocate for the respondent. 2. The plaintiff had filed a Suit being L.C. Suit No.1595 of 2007 against Shri Ram Labbhya Suri. Original defendant No.1 – Ram Labbhya Suri expired on 8.7.2007. Thereafter Chamber Summons was taken out by the plaintiff on 29.3.2008 for bringing names of respondent Nos.1 to 4 as party defendants in place of deceased defendant No.1. The learned Civil Judge by order dated 28.7.2008 dismissed the said Chamber Summons on the ground that the delay was not 2 satisfactorily explained and also on the ground that no prayer has been made to set-aside the abatement. 3. There is a delay of 173 days which, according to the learned Civil Judge, has not been satisfactorily explained. Death of deceased defendant occurred on 8.7.2007. The case of the petitioner is that by letter dated 21st July, 2007 he was informed about the death of defendant No.1. The said letter was received by him some time in August. Thereafter he was harassed by the heirs of original defendant and due to the harassment the matter could not be filed in time. An affidavit has been filed by respondent No.1(b). In the said affidavit, it is stated that by letter dated 21.7.2007 intimation about the death of defendant No.1 and his heirs was given to the petitioner and the said letter was not received in the month of August, 2007 as claimed by the petitioner, but, it was received on 23.7.2007 itself. In support of the statement, reliance is place on the signature of the constituted attorney of the petitioner. The endorsement on the letter shows that it was received on 23.7.2007. In view of the endorsement, the case of the petitioner that he received the letter in the month of August, 2007 is clearly incorrect. Moreover,it is an admitted fact that the parties i.e. present petitioner (orig.plaintiff) and the deceased defendant were residing in adjoining buildings. In such case, the petitioner cannot be heard to say that he was not aware about the death of defendant No.1. The fact that they are residing in adjoining building is admitted by the petitioner. In this view of the matter the 3 stand taken by the petitioner that they became aware only in the month of August, 2007 about the death of defendant No.1 and his heirs, is clearly a false statement. The petitioner cannot be allowed to take advantage of the same. The further stand taken by the petitioner is that on account of harassment by the heirs of the deceased defendant No.1, they could not file the Chamber Summons in time. Looking to the above conduct of the petitioner, this stand also appears to be flimsy one which is taken as an afterthought. Moreover, it is also an admitted fact that no prayer has been made to set-aside the abatement. 4. The learned Advocate for the petitioner submitted that the Court could have set-aside the abatement under Section 151 in its inherent powers. However, I am not inclined to go into that aspect as I find that as far as the delay is concerned the petitioner has clearly made a false statement and taken a false stand. In this view of the matter, no interference is called for in the order dated 28.7.2008. Writ Petition is rejected. [SMT.V.K.TAHILRAMANI,J.]