*1* CHS-1550-09.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1550 OF 2009 IN SUIT NO.39 OF 2006 Welfare Properties Pvt. Ltd. ... Plaintiffs V/s. Sohanlal Dhulchand Jain & Ors. ... Defendants And Gunvanti Ishwerlal Shah & Ors. ... Respondents Mr. R.R. Mishra for the Plaintiffs. Ms. P.M. Bhansali for Defendant No.1. Ms. Mridula Bhatia with Ms. Jyoti Mistry for Defendant Nos.2 to 4. CORAM : S.C.DHARMADHIKARI, J. DATE : 28 th November, 2011. P.C. : 1. This is a Chamber Summons to place on record the details of the heirs and legal representatives of the deceased Defendant No.3. In the affidavit-in-support, it is stated that Chamber Summons No.262 of 2008 was moved for impleading the heirs of the deceased Defendant No.3 as parties to the Suit and for carrying out consequential amendments to the plaint. That Chamber Summons came up before a learned Single Judge of this Court and it was found that the Schedule to the said Chamber Summons was incomplete and, therefore, that Chamber Summons was allowed to be withdrawn with liberty to file a fresh Chamber Summons. *2* CHS-1550-09.sxw Accordingly, the present Chamber Summons has been taken out and the Respondents are duly shown in the title to this Chamber Summons as also in the Schedule as the heirs and legal representatives of the deceased Defendant No.3 Ishverlal Naranji Shah. 2. This Chamber Summons is duly served on all the parties. There is an affidavit-in-reply filed and it is stated that the contents of the affidavit- in-support are inaccurate. There is no liberty granted to file this Chamber Summons. Secondly, the Suit is abated as against the deceased Defendant No.3. There is no prayer to set aside the abatement and to seek condonation of delay in filing this Chamber Summons. Therefore, this Chamber Summons be dismissed. 3. It is clear that the Defendant No.3 is expired on 25th August, 2007 i.e. after institution of this Suit. A Chamber Summons, being Chamber Summons No.262 of 2008, was moved to implead the heirs and legal representatives of the deceased Defendant no.3. That was stated to be in time. That was allowed to be withdrawn with liberty to file a fresh Chamber Summons. Therefore, with liberty, this fresh Chamber Summons has been moved. Ultimately, these matters cannot be viewed in a hyper technical manner. Parties deserve to be given an opportunity to proceed with their claims on merit. If no malafides are attributed and they are not totally negligent, then, in the larger interest of justice, abatements of Suits by death of parties should be set aside and the heirs may be allowed to be brought on record, if the delay has been explained sufficiently and properly. In the instant case, application for impleadment of the heirs and legal representatives of the deceased Defendant No.3 was already made, but that was not proper and, therefore, this application has been *3* CHS-1550-09.sxw necessitated. The affidavit-in-support sets out that the Plaintiffs have been duly and diligently taking all steps. In these circumstances, merely because there is no prayer to set aside the abatement of the Suit as against the deceased Defendant No.3, this Chamber Summons cannot be rejected. Ultimately, if the heirs are allowed to be brought on record, the abatement does not survive and the Suit can proceed. In these, circumstances, there is no merit in these technical objections. 4. As a result of the above discussion, the Chamber Summons is made absolute in terms of prayer clauses (a) and (c). 5. The Plaintiffs to pay costs to Defendant Nos.2 and 4 quantified at Rs.1,500/-. The costs shall be paid within a period of two weeks from today. 6. If the costs are paid and proof is produced, the amendment be allowed to be carried out in terms of the Schedule within a period of two weeks from the date of payment of the costs. 7. Thereafter, the amended plaint be served within four weeks from the date of amendment being carried out. (S.C. Dharmadhikari, J.)