1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CHAMBER SUMMONS NO.900 OF 2007 AND NOTICE OF MOTION NO. 1506 OF 2007 IN SUIT NO.1057 OF 1997 Usha D. Shah & Anr. …Plaintiffs Vs. Utility Premises Pvt. Ltd. & Anr. …Defendants And Leena J. Desai & Anr. ...Respondents Mr. Virag Tulzapurkar, Sr. Counsel with Ms. Alpana Gore i/b. Kanga & Kanga Comp. for the Plaintiffs Mr. S.P. Dalal i/b. M/s. Dalal & Co. for Defendant No.2 CORAM: SMT. ROSHAN DALVI, J. DATED : 17 TH OCTOBER, 2008 P.C. 1. The Plaintiff No.2 expired on 20 th May, 1999 pending the suit. The Plaintiff No.2 is a son of Plaintiff No.1. The Plaintiff No.1 is one of the heirs and legal representatives of Plaintiff No.2. Plaintiff No.1 continued on record of the suit in her own individual capacity as well as one of the legal heirs and representing the estate of deceased Plaintiff No.2. An entry to that effect was required to be made in the plaint 2 under the provisions of Order XXII Rule 2 of the C.P.C. In the case of Mahavir Prasad Vs. Jageram & Ors. 1971 (1), SCC 265 it has been observed in paragraph No.7 that when one party in a proceeding dies and one of the legal representatives is already on record in another capacity, the surviving legal representative is only required to be described as such heir and legal representative. This is under the provisions of Order XXII Rule 2 of the C.P.C. Consequently it is held that the proceeding will not abate. 2. The Plaintiffs, of course, did not get the relevant entry made in the plaint with regard to Plaintiff No.1 suing the Defendants also as an heir and legal representative of the Plaintiff No.2. Hence the Notice of Motion No.1506 of 2007 is taken out to dismiss the suit as having been abated. The suit has not abated and hence, that notice of motion is dismissed. 3. The Plaintiffs have taken out the Chamber Summons after 9 years of the death of Plaintiff No.2 to bring the other heirs on record of the suit as Defendants 3 and 4. This amendment is not strictly essential in view of Order XXII Rule 2 and the judgment in the case of Mahavir Prasad (supra). The suit has not abated by the death of Plaintiff No.2. Hence, though not essential, the amendment may be 3 made as desired by the Plaintiffs. 1. Consequently the Chamber Summons is made absolute in terms of prayers (a) and ( c). 2. The Plaintiffs shall carry out amendment within 4 weeks in the plaint as well as in the copy of the plaint served on the Defendants. 3. The Plaintiffs shall serve the amended writ of summons on the Defendants 3 and 4 within 8 weeks. (SMT. ROSHAN DALVI,J.)