1 wp850-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 850 OF 2011 Kurbanhussein Nanabhai Khambatti and others .. Petitioners Versus Ibrahim G. Shaikh and others ... Respondents Mr. A. V. Anturkar i/by Mr. S. B.Deshmukh for the petitioners Mr. Sanjay Jain i/by Mr. Nivit Srivastava for respondent Nos. 1 to 7 CORAM : R. Y. GANOO, J. DATED : 27th September, 2011 P.C. 1. Rule. Rule made returnable forthwith. 2. By consent, the petition is taken up for hearing. Heard learned Advocates on both the sides. 3. The court is informed that the petitioner No.1- Kurbanhussein Nanabhai Khambatti has expired. Even then the petition is maintainable and can be entertained as the petitioner no.2 is alive. Respondent nos. 1 to 7 who filed an application being Chamber Sommons No. 959 of 2007 for being joined as party defendants in Suit No. 8591 of 1969 pending on the file of City Civil Court at Dindoshi, Mumbai. The 2 wp850-11 Chamber Summons was decided by the learned Judge of the Civil Court and the same was dismissed by order dated 13th July 2009. That order was challenged before this Court in Appeal From Order No.917 of 2009 and the Appeal From Order was allowed by order dated 7th October, 2009 and the learned Judge of the City Civil Court was directed to hear and dispose of the aforesaid Chamber Summons No. 959 of 2007 along with connected Chamber Summons No. 243 of 2009. This Court, in para 1 of the said order dated 7th October, 2009 given a specific indication as to how the learned Judge of the Civil Court should deal with the matter before him and in particular, it was also directed that the learned Judge should consider the judgment of the Apex Court in the case of Phulchand & another Vs. Gopal Lal reported in AIR 2007 SC 1470. The learned City Civil Court undertook the job as directed to him and passed an order in the Chamber Summons No. 959 of 2007 on 15th October, 2010 and accordingly granted the said Chamber Summons. This order is challenged in this petition. 4. A bare look to the order passed by the learned Judge of the City Civil Court, dated 15th October, 2010 would go to show that the learned Judge has not carried out the directions given by this Court in the order dated 7th October, 2009. The learned Judge has merely narrated some 3 wp850-11 facts and has arrived at the conclusion that the Chamber Summons should be granted. No reasons are specifically mentioned. The indications given in the order dated 7th October, 2009 have not been looked into. Even in the impugned order dated 15th October, 2010, there is no reference to the judgment of the Apex Court in the case of Phulchand & another. When specific direction was given by this Court to refer to a particular case, it was absolutely necessary for the learned judge to look into that case, make reference to it and deal with that case. The same has not been done. It is for this reasons, I am inclined to set aside the order dated 15th October, 2010 and remand the Chamber Summons No. 959 of 2007 to the learned Judge of the Civil Court at Dindoshi Division, Mumbai for determination of the same in accordance with law. 5. The learned advocate for the petitioner stated across the bar, upon instructions, that the heirs of petitioner no.1 are not brought on record in the trial Court. Since the partition Suit is of 1969, it has to be heard urgently. The learned advocate for the petitioner stated, upon instructions, that if the said heirs are not brought on record prior to the commencement of the hearing of the aforesaid Chamber Summons they will not make grievance that they were not heard while deciding the 4 wp850-11 Chamber Summons upon remand. 6. For the reasons mentioned aforesaid, the following order is passed. i. The order dated 15th October, 2010 passed in Chamber Summons No. 959 of 2007 in Suit No. 8591/1969 is set aside. ii. Chamber Summons No. 959 of 2007 in Suit No. 8591/1969 is restored to file of the Civil Civil Court, Dindoshi, Mumbai. The learned Judge, before whom the Suit No. 8591of 1969 is pending shall decide the Chamber Summons No. 959 of 2007 on merits. While conducting hearing of the aforesaid chamber summons, the learned judge shall keep in mind the points mentioned in the order dated 7th October, 2009. He shall also refer to the judgment of the Apex Court in the case of Fulchand & another and deal with the said judgment while passing the order. The learned Judge of the City Civil Court, Mumbai shall hear and dispose the said Chamber Summons preferably on or before 31th October, 2011. iii. It is understood that before any further orders are passed in the main suit, the learned Judge of the Civil Court will have to attend to the aforesaid Chamber Summons. iv. The Petition is accordingly disposed of. v. There shall be no order as to costs (R. Y. GANOO, J.)