1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1669 OF 2010 IN SUIT NO.611 OF 2001 Burjor Sorabjee Sidhwa .. Plaintiff V/s M/s.Carona Ltd. .. Defendant And Mrs.Perviz Jamshed Alexander & Anr. .. Applicants Mr.Girish Desai i/by Mr.Rajesh Shah & Co.for the Applicants. . Mr.Bharat Vaishnav i/by M/s.Bharat Vaishnav & Co.for the Defendants. Ms.T.H.Puranik for B.M.C. CORAM: R.G.KETKAR, J. DATE: 8th July, 2011. P.C.: 1. Applicants have taken out this Chamber Summons (i) for condoning the delay of 104 days caused in filing the Chamber Summons, (ii) for bringing them on record as heirs and legal representatives of the original plaintiff -Burjor Sorabjee Sidhwa and (iii) for setting aside the abatement. 2. In support of this Chamber Summons, Homi Sorabji Ayrton, constituted attorney of the applicants has made an affidavit. It is contended in the affidavit that the original plaintiff Burjor instituted Suit No.611 of 2001 on the original side of this Court 2 against the Defendants for recovery of possession of shop premises No.5 given by him to the Defendants on Leave and Licence basis in writing on 18.03.1994. Pending the suit, the original plaintiff Burjor expired at Mumbai on 15.04.2009 leaving hehind him his sister Mrs.Khorshed J.Mody. Said Khorshed being the sister and the only surviving heir applied for grant of succession certificate by filing the Testamentary Petition No.649 of 2009. It is averred that the said Testamentary Petition was made with the consent of the applicants. During the pendency of these proceedings, Mrs.Khorshed expired on 23.02.2010leaving behind the applicants herein as her only heirs and legal representatives. Immediately thereafter within one week applicants applied for bringing them on record as the only heirs and legal representatives of deceased Khorshed in the said petition. Applicants were brought on record in that Testamentary Petition and eventually on 09.06.2010 this Court granted succession certificate to the applicants under section 307 of the Indian Succession Act, 1925. 3. After obtaining the succession certificate, the applicants have taken out present Chamber summons on 20.09.2010. It is in these 3 circumstances, the applicants have prayed for condoning the delay caused in filing the chamber summons as also for setting aside the abatement and for bringing them on record as heirs and legal representatives. 4. Defendants have filed affidavit of Anil K.Khatau, Director of the Defendants opposing the chamber summons. It has been contended that though the original plaintiff Burjor died on 15.04.2009, his sister Khorshed did not take out application in time claiming to be his only heir and legal representative. Thereafter the said Khorshed died on 23.02.2010 and the present chamber summons is taken out on 20.09.2010. There is no explanation for such a long delay of more than 500 days. It has been further asserted that the original plaintiff Burjor died leaving behind him other heirs and legal representatives and they have not been brought on record. It is therefore contended that the mother of the applicants was not the only heir of deceased Burjor and consequently the applicants are not the only heirs and legal representatives of original plaintiff Burjor. 5. I have considered the rival submissions made by learned counsel for the parties. It is not in dispute that the original plaintiff Burjor 4 died on 15.04.2009 and Mrs Khorshed filed Testamentary Petition No.649 of 2009 on 20.06.2009. It is also not in dispute that pending this testamentary petition, said Khorshed died on 23.02.2010. Applicants were brought on record in the Testamentary Petition No.649 of 2009 and ultimately by an order dated 09.06.2010, succession certificate is issued in the name of the applicants. The said certificate is at Exhibit ‘B’ to the affidavit in support of the Chamber Summons. Present chamber summons is taken out on 20.09.2010. Mr.Vaishnav, submits that there is delay of more than 500 days and not of 104 days as claimed by the applicants, having regard to the fact that said Burjor died on 15.04.2009 and the present chamber summons is taken out on 20.09.2010. Even if accepting the contention of Mr.Vaishnav that there is delay of more than 500 days, in my opinion, the applicants have explained the delay in Paragraph Nos.11 to 15 of the affidavit in support of this Chamber Summons as to why they could not take out the chamber summons before obtaining the succession certificate pursuant to the order dated 09.06.2010. I am therefore satisfied that the applicants have made out sufficient case for condoning the delay. 5 6. As far as contention raised by Mr.Vaishnav that the original plaintiff Burjor died leaving behind him other heirs and legal representatives is concerned, I do not find any merit in this submission. Admittedly the applicants were substituted in Testamentary Petition No.649 of 2009 which was filed by their mother Khorshed Mody. Said Khorshed had filed Testamentary Petition No.649 of 2009 on 20.06.2009 after death of Burjor on 15.04.2009, which was within limitation. If at all Burjor had died leaving behind him other heirs and legal representatives, then such other heirs and legal representatives could have participated in the Testamentary Petition and could have objected to grant of succession certificate. That apart, nothing is brought on record to even suggest that the succession certificate obtained by the applicants has been challenged by anyone claiming to be heir and legal representative of original plaintiff Burjor. In these circumstances, I do not find any substance in the submission advanced by Mr.Vaishnav. In the result, Chamber Summons is made absolute in terms of prayer clauses (a), (b) and (c), with no order as to costs. Amendment to be carried out within four weeks from today. 6 7. On the application made by Mr.Vaishnav, this order is stayed for a period of two weeks from today. (R.G.KETKAR, J.)