:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 408 OF 2008 APPEAL NO. 408 OF 2008 APPEAL NO. 408 OF 2008 IN IN IN CHAMBER SUMMONS NO. 1903 OF 2007 CHAMBER SUMMONS NO. 1903 OF 2007 CHAMBER SUMMONS NO. 1903 OF 2007 IN IN IN SUIT NO. 229 OF 1989 SUIT NO. 229 OF 1989 SUIT NO. 229 OF 1989 Nikira Trading, a firm carrying on ] business at 1B, Suvas Apartments, ] 68F, Nepeansea Road, Bombay 400006 ] and 50, Kakhoda Street, Shop No. 3, ] Patel Chambers, Pydhonie, ] Bombay 400 004 ]Appellant versus 1. Nirlon Synthetic Fibres & Chemicals ] a Public Limited Company, ] incorporated under the Companies ] Act, 1956 and having its Registered ] Office at Pahadi Village, Goregaon ] (East), Bombay 400 063 ] 2. M/s. Chhaganlal & Sons, ] a sole proprietor firm carrying ] on business at 330, Narsi Natha ] Street, Mumbai 400 009 ] 3. Mansukhbhai Desai of Bombay ] Indian Inhabitant, carrying on ] business in the firm name and style ] of M/s. Chhaganlal & Sons as a sole ] proprietor at 330, Narsi Natha ] Street, Mumbai 400 009 ] 4. Kamlaben Mansukhbhai Desai ] Flat No. 7, Munisurat Darshan, ] 2nd Floor, A Wing, Cama Lane ] Ghatkopar (West), Mumbai 400 086 ] 5. Rajesh Mansukhbhai Desai, ] Flat No. 7, Munisurat Darshan, ] 2nd floor, A Wing, Cama Lane, ] Ghatkopar (West), Mumbai 400 086 ]Respondents :2: Mr. Virag Tulzapurkar i/b. Bharucha & Partners for the Appellant. Mr. J. P. Sen with Mr. M. A. Shah for the Respondent No. 1. CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND S. A. BOBDE, J. S. A. BOBDE, J. S. A. BOBDE, J. Date of Reserving Judgment : 03.12.2008 Date of Reserving Judgment : 03.12.2008 Date of Reserving Judgment : 03.12.2008 Date of Pronouncing Judgment: 18.12.2008 Date of Pronouncing Judgment: 18.12.2008 Date of Pronouncing Judgment: 18.12.2008 ORAL JUDGMENT: (Per : S.A. Bobde, J.) ORAL JUDGMENT: (Per : S.A. Bobde, J.) ORAL JUDGMENT: (Per : S.A. Bobde, J.) . Heard learned counsel for the parties. 2. This is an Appeal against the Order of the learned Single Judge allowing the plaintiffs chamber summons for condonation of delay in taking out proceedings for setting aside the abatement of the suit and for impleading the legal representatives of the defendant No. 1. 3. The plaintiffs have prosecuted the suit diligently throughout the 19 years of its pendency. The defendant No.1 expired on 27.7.1999. According to the plaintiffs they came to know of his demise on 29.8.2007 and not before, when they were informed of it by the Advocate of the defendant No.2 at the :3: hearing. They took out a chamber summons on 19.11.2007 for setting aside abatement and impleadment of the legal representatives. The appellants opposed the chamber summons mainly on the ground that the plaintiffs must be taken to have had knowledge of the demise of the defendant No. 1 before 29.8.2007 for two reasons. Firstly, that in another suit chamber summons No. 1434 of 2006 was taken out for similar reliefs as the present chamber summons and that was made absolute on 19.7.2007. Secondly, on the ground that there was no averment in the affidavit in support of the chamber summons that the respondents No. 1 - plaintiffs were not aware of the death of the defendant No. 1. The learned Single Judge disagreed and allowed the chamber summons. 4. Before us substantially the same contentions were urged by the learned counsel for the appellant. It appears that the Order of the learned Single Judge does not suffer from any illegality or perversity. The learned Single Judge has found on the basis of the affidavit in support of the chamber summons that the Officers as also the Advocates attending to two litigations were different and it is quite possible as averred that the information of the demise of the :4: defendant No. 1 was not communicated to the other set of Officers and Advocates attending to the present suit. In such circumstances, it would not be appropriate to attribute deemed knowledge of the plaintiffs without actual proof. As far as the second reason is concerned, we find that the learned Single Judge has properly construed the pleadings of the respondents No. 1 - plaintiffs. It may be observed that the appellant did not lead any evidence that the plaintiffs - respondents No. 1 had actual knowledge of the demise of the defendant No.1 before 29.8.2007. It appears that on 17.8.2007, the plaintiffs intended to go on with the matter since they had kept the draft issues ready and it is on the adjourned date that they learnt of his death on being informed by the Advocate of the defendant No.2. In these circumstances, the reliance by the learned Single Judge on observations of the Supreme Court in Union of India vs. Ram Charan (deceased) through his Legal Representatives, AIR 1964 S.C. 215, to the following effect are appropriate: "....... It is for the appellant, in the first instance to allege why he did not know of the death of the respondent earlier or why :5: he could not know about it despite his efforts if he had made any efforts on having some cause to apprehend that the respondent might have died." There is thus no merit in the Appeal, which is hereby dismissed. CHIEF JUSTICE CHIEF JUSTICE CHIEF JUSTICE S. A. BOBDE, J. S. A. BOBDE, J. S. A. BOBDE, J.