1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi CHAMBER SUMMONS NO. 1999 OF 2009 IN SUIT NO.36 OF 1969. Premabai Mathradas Goculdas & Ors. ..Plaintiffs. v/s. The Provident Investment Co.Ltd. & Ors. ..Defendants. .... Ms. Pooja Patil, a/w. Sandip A., i/b. M/s. Udwadia & Udeshi, for Plaintiffs. Mr. Pravin Patel, for Defendant No.1. Mr. S.R. Rajguru, for Defendant Nos. 2 & 3. .... CORAM : S.J. KATHAWALLA, J. DATE : 4TH JANUARY 2010. P.C. This suit is more than 40 years old and is one of the oldest suits on the file of this Court which is yet to be disposed of. 2. The plaintiffs have by the present suit inter-alia sought a declaration that the plaintiffs are entitled to redeem the mortgaged properties and to have the same re-conveyed to them and have possession thereof. An order of reconstruction of the papers and proceedings was passed by the Master and Assistant Prothonotary (ADM.) on 10th February 2009. Thereafter, the records were reconstructed on 14th July 2009 by the parties. 2 3. On 4th September 2009, this Court [Coram : S.C. Dharmadhikari, J.] after hearing the parties and perusing the pleadings, framed ten issues for consideration. The plaintiffs agreed to file their affidavits of documents and evidence on or before 14th September 2009 and also agreed to forward an advance copy to the other side. 4. However, the plaintiffs filed their affidavit of evidence only on 12th October 2009 and thereafter offered inspection of documents to the the Advocates for the defendants. On 8th December 2009, the matter appeared before this Court for admission and denial of documents filed by the plaintiffs, when the Advocates for the defendants made a grievance that they were offered inspection only of typed copies and not of the originals. In view thereof, the plaintiffs were directed to offer inspection of documents to the defendants in Court. After inspection of the documents was completed by the defendants, the Court passed a detailed order qua the admission and denial of documents which included marking of certain admitted documents as exhibits. The suit was thereafter placed for recording of the evidence of plaintiffs on 16th December 2009 at 3.00 p.m. 5. On 16th December 2009, the learned Advocates appearing for the defendant no.1 informed the Court that they 3 have taken out the above chamber summons for recasting of the issues and for certain directions, when this Court passed the following order :- "This matter was placed for recording evidence. Repeatedly, I have impressed on the parties that this is one of the oldest suit on the file of this Court. This suit is of the year 1969 and evidence is yet not recorded in this suit. When it was placed for recording evidence, now it is stated by Mr. Patel appearing for defendant no.1 that he has moved a chamber summons no.1999 of 2009, seeking inter- alia, recasting of issues and some directions. List this chamber summons first on board on 4th January 2010." 6. Today, I have heard the learned Advocate appearing for defendant no.1 in support of the chamber summons at some length. Defendant no.1 seeks framing of the following two issues in addition to the ten issues already framed on 4th September 2009. "1. Whether valuation mentioned in para 15 of the plaint at Rs.15,00,000/- is proper ? 2. Whether the suit is liable to be dismissed on the ground of non-joinder of M/s.Mathuradas Madhavji & Co. who are the partners of the plaintiffs ?" 4 7. As far as issue no.1 is concerned, the defendants have in their written statement denied / disputed the valuation of the plaint as set out by the plaintiffs in paragraph 15 of the plaint. In view thereof, the following issue is framed as an additional issue for consideration : "Whether valuation mentioned in para 15 of the plaint at Rs.15,00,000/- is proper ?" 8. As far as the second issue is concerned, the learned Advocate appearing for the defendant no.1 admits that it is not the case of the defendant no.1 in the written statement filed on 18th August 1969 or at any time thereafter, that the suit is liable to be dismissed on the ground of non-joinder of M/s.Mathuradas Madhavji & Co. who are the partners of the plaintiffs. In view thereof, the question of framing of the said second issue, does not arise. 9. The learned Advocate appearing for the defendant no. 1 has further submitted that according to him, all the plaintiffs have expired and that the Advocates for the plaintiffs have not taken any steps to bring the heirs of the plaintiffs on record. He, therefore, submits that necessary directions be passed calling upon the plaintiffs to disclose, which of the plaintiffs are alive and to 5 delete the names of the plaintiffs who are not alive. In my view, no such directions are required. If the plaintiffs have expired as alleged by the defendant no.1 and their heirs are not brought on record, it is the plaintiffs, who shall suffer the consequences. 10. The learned Advocate appearing for the defendant no. 1 has also submitted that since defendant no.1 is desirous of challenging the order dated 10th February 2009 for reconstruction of the proceedings, this Court should direct the office to permit the defendant no.1 to take search of register of the orders from 1969 till the year 2009. It is submitted that such search is required because it is possible that the suit might have been dismissed either under Rule 986 of High Court (Original Side) Rules for non-removal of objections or on default of the parties. The defendant no.1 who is admittedly a party to the suit since the last 40 years, did not deem fit over these years to take any inspection of the Court records. The order of reconstruction of the proceedings is passed on 10th February 2009 after which proceedings are reconstructed in July 2009 and issues framed on 4th September 2009. Admission and denial of the plaintiffs documents is over on 8th December 2009. The suit was fixed for cross-examination of the plaintiffs’ witness on 16th December 2009, which the defendants have avoided by taking out the 6 present chamber summons. No basis whatsoever is made out for the defendant no.1 to contend that the suit may have been dismissed for non-removal of objections or in default. I am convinced that the directions now sought are only with a view to further delay the hearing of the suit, which cannot be allowed. 11. Chamber summons is accordingly disposed of. 12. Place the suit for cross-examination of plaintiffs' witness on 8th January 2010 at 3.00 p.m. It is clarified that since the suit is pending before this Court since the year 1969 and is one of the oldest suits pending in this court, no time on whatsoever ground shall be granted to either of the parties on the adjourned date. 13. S.O. to 8th January 2010 at 3.00 p.m. for cross- examination of the plaintiffs’ witness. [ S.J.KATHAWALLA, J. ]