1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.327 OF 2005 ALONGWITH CIVIL APPLICATION NO.259 OF 2008 Framroze N. Maloo, Decd., Thru’ Shirin Burjor Maloo & Ors. ... Appellants V/s. Summermal Mishrimal Bafna & Ors. ... Respondents Mr. S.S. Shah for the Appellants. Mr. V.A. Kantawala for Respondent Nos.1 and 2. Mr. V.B. Naik for Respondent Nos.8 to 12. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 10 TH FEBRUARY, 2010. PRONOUNCED ON : 19 TH MARCH, 2010. JUDGMENT : 1. The Appeal is directed against the order dated 7th and 8th February, 2000 passed by the City Civil Court, Bombay in S.C. Suit No.3312 of 1971. By this order, the learned Judge of the City Civil Court, Bombay, has held that the Suit has abated and has vacated all the earlier interim orders. 2 2. To appreciate the controversy involved in the present Appeal from Order, it is necessary to set out a few facts. The Suit has been filed for dissolution of the partnership of M/s. Bafna Development Corporation and for other reliefs. Consent terms were filed, referring the dispute for Arbitration and the Suit was stayed. Framroze Maloo, the original plaintiff, expired on 20th May, 1974. His heirs and legal representatives engaged an Advocate to appear for them in the matter. The vakalatnama of their Advocate was filed on 12th June, 1974. 3. The present appellants are the heirs of Framroze N. Maloo. They claim that they were brought on record in the Suit by a Judge’s Order. Notice of Motion No. 188 of 1975 was moved by the appellants before the City Civil Court, Bombay, for certain reliefs. An affidavit in support of the Notice of Motion was also filed in which the name of Mrs. Najamai Framroze Maloo (the widow of the original plaintiff) and others was 3 mentioned as the plaintiffs in the cause title. The Notice of Motion was withdrawn on 14th April, 1975, after the reply was filed by respondent No.1. 4. The appellants thereafter took out another Notice of Motion being Notice of Motion No.252 of 1976 for recalling the compromise arrived at between the parties before the Arbitrator. On 19th April, 1976, an affidavit of respondent No.1 was filed in which he agreed that the original plaintiff had died and that the appellants were brought on record as his legal heirs and representatives. It appears that the matter then proceeded and several applications were filed. Notices of Motions were moved before the trial Court in the Suit. In all these proceedings, the appellants were shown as the plaintiffs being the legal heirs and representative of the original plaintiff. 5. In 1983, when the plaintiffs filed a Notice of Motion for contempt against the appellants for having inducted third parties, an affidavit in reply was filed by the defendants. It was for the first time in 4 that affidavit that a statement was made that the Suit had abated since the heirs of Framroze N. Maloo were not brought on record in accordance with law. A rejoinder was filed by the second plaintiff, i.e. Burjor M. Framroze Maloo, denying the abatement. By the order dated 26th March, 1985, the trial Court held that there was no contempt, as alleged by the plaintiffs. It further held that the Suit had not abated, as contended by the defendants. Appeal from Order No.604 of 1985 was filed by the defendants. During the pendency of that Appeal from Order, Plaintiff No.2, i.e. Burjor M. Framroze Maloo died on 4th December, 1985. This Court held that the Contempt Petition would still survive qua the contemnor, regardless of whether the Suit had abated. The learned Single Judge of this Court while disposing of the Appeal from Order observed that since the question of abatement was hotly contested, it would be necessary for the parties to lead evidence on that issue. The Appeal from Order was accordingly disposed of. 5 6. On 3rd March, 1986, a written statement was filed by the defendants contending that the Suit had abated. Thereafter on 17th March, 1986, the trial Court has passed the following order in the Roznama : “As regards Plaintiff, he (Plaintiff’s Advocate) says that he is already dead, but the heirs have been brought on record by the Judge’s Order passed of which according to him papers have been lost and not traced in Court papers. But legal representatives of the Plaintiff are not brought on record by carrying out necessary amendments in the Plaint. He, therefore, wants to take steps. Learned Advocate for contesting defendants does not dispute that there was such a Judge’s Order to bring the heirs of Plaintiff on record, but according to him, Plaintiff has not brought the heirs on record by amending the Plaint...... (Emphasis added)” 7. A fresh Chamber Summons was filed by the appellants on 1st April, 1986 being Chamber Summons No. 397 of 1986. The learned Judge passed the following order in the Chamber Summons on 4th April, 1986 : 6 “Mr. Sudhir Shah / Mr. D.S. Parikh – Defendant Nos.1 to 5 and 7. Chamber Summons No.397/86. The original Plaintiff died and thereafter the heirs were ordered to be brought on record. Those heirs were the wife, daughter and two sons. Before Plaintiff’s legal representatives carried out the amendment by showing all those four heirs in the plaint, wife and one of the sons of the original Plaintiff who are the legal representatives died. In this background the Chamber Summons taken out. Plaintiff says that the heirs be permitted to carry out the amendment by showing the surviving legal representatives only as the legal representatives of the deceased original plaintiff. This has been rightly opposed by the contesting defendants as the legal representatives have to carry out the amendment as per the earlier order to bring all the four legal representatives on record and if two of them have already died, that is a separate question and that by itself does not allow the Plaintiff not to show the deceased legal representatives as the legal representatives of the original plaintiff while seeing permission now to carry out the amendment as per the earlier order to bring all the four heirs on record. Hence plaintiff permitted to carry out the amendment by showing all the four legal representatives within a week from today on the 7 costs of Rs.50/- to the contesting defendants.” 8. Since Mrs. Najamai and Burjor, the wife and son of the original plaintiff, i.e. plaintiff Nos. 1 and 2 respectively, had expired, Chamber Summons No.609 of 1986 was moved for deletion of their names and for bringing on record the legal heirs of Burjor. A reply was filed to this Chamber Summons by the defendants. Another Chamber Summons being Chamber Summons No.1244 of 1986 was moved on 18th March, 1987 for bringing on record the legal heirs of defendant No.6, who had expired during the pendency of the earlier Chamber summons. By the order dated 18th March, 1987, both the Chamber Summonses were allowed with costs. Thereafter, written statements were filed by some of the defendants and as also their affidavit of documents. On 26th June, 1992, the plaintiffs filed Chamber Summons No.799 of 1992 to amend the plaint. That application was allowed and the plaint was amended on 1st December, 1992. Issues were framed on 3rd February, 1994, when the defendants did not insisted on a issue 8 regarding abatement of the Suit being framed as a preliminary issue. The question of jurisdiction was framed as a preliminary issue and the trial Court decided in favour of the plaintiffs on 15th December, 1995. Several affidavits were later filed by the parties. Written arguments were also tendered on behalf of defendant Nos.1 to 4. The Commissioner’s Report was on board for hearing on 7th / 8th February, 2000. The defendants contended that the Suit had abated. The learned Judge of the City Civil Court, Bombay, has dismissed the Suit as abated in 1974. The learned Judge concluded that Chamber Summons No.397 of 1986 was still pending in Court. The learned Judge further held that the order dated 4th April, 1986 passed by his predecessor, permitting the plaintiffs to be brought on record as the legal heirs and representatives of Framroze N. Maloo, was a nullity. 9. Mr. Shah appearing for the appellants submits that all along the parties have proceeded in the Suit on the footing that the application for bringing on 9 record the legal heirs and representatives of Framroze N. Maloo had been allowed by a Judge’s Order. He points out that, in fact, the heirs had been brought on record as several Notices of Motion and Chamber Summonses reflected the names of the heirs of Framroz. The amendment to the plaint remained to be carried out. He further points out that pursuant to the order dated 4th April, 1986 in Chamber Summons No.397 of 1986, the appellants were permitted to carry out the amendment in the plaint as per the earlier Judge’s Order. At no point of time did the defendants ever contend that the heirs of Framroze N. Maloo were not brought on record, according to Mr. Shah. The learned Counsel further submits that once an order had been passed by the City Civil Court, Bombay, on 26th March, 1985, holding that there was no abatement, another learned Judge of the City Civil Court, Bombay, could not sit in Appeal over that order and conclude that the Suit had abated. Mr. Shah submits that the amendment was to be carried out in the plaint without filing a Chamber Summons pursuant to a Judge’s Order 10 granting the amendment. He submits, therefore, that the trial Court has caused great prejudice to the appellants by concluding that the Suit had abated. Mr. Shah has drawn my attention to the pleadings before the City Civil Court, Bombay, in which there is a reference to the legal heirs of the original plaintiff being brought on record. He points out that it is not only in the pleadings of the plaintiffs, but also in the pleadings submitted by the defendants that they had accepted the fact that the appellants were brought on record in the Suit by following the due process of law. He further submits that the finding of the City Civil Court, Bombay, that there is no Judge’s Order on the file of the Court cannot be accepted as the amendment had been allowed pursuant to the Judge’s Order. 10. Mr. Naik appearing for the defendants-respondents submits that once the learned Judge has noted in his impugned judgment that the record available before the Court does not contain the Judge’s Order granting the 11 amendment, the Court would have no option but to dismiss the Suit. He submits that the amendment could have been permitted only if a Chamber Summons for bringing the heirs and legal representatives of Framroz N. Maloo on record had been filed. According to the learned Counsel, such amendment could not have been granted by Judge’s Order. He, therefore, submits that the order passed on 4th April, 1986 in Notice of Motion No.397 of 1986 could not be implemented. 11. It appears that the record and proceedings have been called for from the trial Court. The Judge’s Order permitting the amendment is not on record. However, the parties have proceeded all these years on the footing that the amendment has been allowed. The defendants have, in fact, stated so in their various pleadings filed before the Court. In fact they have conceded in their pleadings that the heirs of Framroz were brought on record pursuant to a Judge’s Order. The defendants did not challenge the order passed by the City Civil Court on 4th April, 1986 in Chamber Summons No.397 of 1986. The defendants had thus 12 acquiesced in the plaintiffs being brought on record. The trial Court has erred in observing that the Suit had abated. Furthermore, the trial Court could not have sat in judgment over the order passed by his predecessor. It was not for the trial Court to decide whether the order passed by his predecessor on 4th April, 1986 was a nullity. The defendants had not challenged that order. In fact some of them had filed their written statements after the order was passed. Therefore, in my opinion, the trial Court could not have set at naught, after a period of 14 years, an order which had not been challenged by the defendants. 12. The impugned order is, therefore, set aside. 13. The S.C. Suit No.3312 of 1971 is restored to file. 14. The Chamber Summons No.397 of 1986 has been disposed of by the order dated 4th April, 1986. 15. The Appeal from Order is allowed. 13 16. The Suit shall be disposed of as expeditiously as possible and in any event by 30th June, 2011. 17. In view of the above, Civil Application No.259 of 2008 pending in the Appeal from Order does not survive and the same is dismissed. 18. The learned Advocate for the respondents seeks a stay of this order. In my opinion, there is no need to grant the stay. Stay refused.