1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3745 OF 2009 Galaxy Home Co-op. Housing Society Ltd. .. Petitioner versus Ratilal Mistry & Ors. .. Respondents Mr.Manojkumar Upadhyay for the petitioner. CORAM : A.S.OKA, J. DATE : 6th January 2010. P.C: . Heard learned counsel appearing for the petitioner. On 12th June 2009 notice for final disposal at admission stage was issued by this Court. The 1st respondent is duly served and is represented by an advocate. The 2nd respondent is already shown as dead. As far as 3rd respondent is concerned, affidavit of service has been filed. The petitioner is the original plaintiff. The petitioner-Society filed a suit against the respondents for various reliefs. The 3rd respondent-3rd defendant is a partnership firm. A chamber summons was taken out by the 1st respondent (1st defendant) contending that the 3rd respondent (3rd defendant) firm was not in existence. By the impugned order, the said chamber summons was made absolute and name of the 3rd respondent was ordered to be deleted. 2. The petitioner are the plaintiffs who had impleaded the 3rd respondent as 2 party defendant. A contention was raised by the 1st respondent that the 3rd respondent is not in existence. It will be necessary to refer to relevant part of the impugned order. In paragraph 5 of the impugned order, the learned Judge has observed thus: “5. Even today the defendant no.1 is stuck up to the same statement that defendant no.3 partnership firm was not in existence. So, relying on said statement made by defendant no.1 and accepting that defendant no.3 firm is not in existence, even after success in this suit by plaintiff, no decree can be passed against defendant no.3 for execution of deed of conveyance. As defendant no.1 is party to the agreement, at the most decree can be passed only against defendant no.1. So, the chamber summons deserves to be allowed .... ” 3. Thus, the impugned order has been passed only on the basis of statement of the 1st defendant that the 3rd defendant is not in existence. Whether the 3rd defendant is in existence or not is a matter of evidence and even before the parties adduce evidence, only on the basis of a bald statement of the 1st respondent that the 3rd respondent is not in existence, the name of the 3rd respondent cannot be ordered to be deleted. If the 3rd respondent is not in existence, the petitioners are taking a risk of prosecuting the suit against the 3rd respondent. However, even before the parties adduce evidence, such a drastic order could not have been passed. Therefore, the impugned order is illegal and deserves to be set aside. The issue whether the 3rd respondent (3rd defendant) is in existence or not will have to be kept open to be decided at the appropriate stage. 4. Hence, I pass the following order: 3 : O R D E R : (a) Subject to what is observed above, the impugned judgment and order dated 11th August 2008 is quashed and set aside and Chamber Summons No.546 of 2007 stands dismissed. (b) It is however made clear that the issue whether the 3rd respondent (3rd defendant) firm exist or not is kept open. (c) The petition is allowed in above terms. (A.S.OKA,J)