:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 435 OF 2006 SUMMONS NO. 435 OF 2006 SUMMONS NO. 435 OF 2006 IN IN IN SUIT SUIT SUIT NO. 4712 OF NO. 4712 OF NO. 4712 OF 1997 1997 1997 Mrs. Halimabai Abdul Gafoor Multani. ...Plaintiff. V/s. Mrs. Hajani Aminabai wd/o. Haji Abdul Karim & Anr. ...Defendants. And Mohammed Rafique Abdul Karim. ... Respondent. Mr. Varma i/b. Ashok Saragoi for the Plaintiff. Mr. Atul Singh i/b. Anil C. Singh for Defendant 2. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 26TH 26TH 26TH NOVEMBER 2008. NOVEMBER 2008. NOVEMBER 2008. P.C. P.C. P.C. : : : . This is a Chamber Summons for bringing the heirs and Legal Representatives of the deceased Defendant No.1 on record. There is a prayer to set aside the abatement. 2. It is stated in the affidavit in support by the Plaintiffs that during the pendency of the Suit, the Original Defendant No.1 made an attempt to deal with the property by assigning rights in favour of Defendant No.2. Therefore, the Chamber Summons was moved for joining Defendant No.2. It is contended that the Plaintiff has been making payment of rent in respect of the premises to the Respondent to the present Chamber Summons. He is none-else but the son of the Second Defendant. The rent was paid upto the year 2002. It is stated that the rent :2: was accepted by the Respondent. It is stated that only in the month of March 2006 that the Plaintiff became aware of the death of the First Defendant. The statement in para 4 of the affidavit in support is that even the Respondent refused to accept the rent and it is only thereafter the Plaintiff became aware of the death of the deceased Defendant No.1. 3. An affidavit in reply is filed by Defendant No.2, who has contended that the affidavit in support contains false statement inasmuch as Chamber Summons No.644 of 2003 was filed in this suit for adding the same Respondent as party Defendant but this Chamber Summons was withdrawn by the Plaintiff. 4. It is stated that the original Defendant has sold the suit property to the Second Defendant on 24th July 1997. It is contended that another Chamber Summons taken out being Chamber Summons No.1527 of 2004 wherein also the statement was made that the First Defendant was no more and had expired. Thus, at both stages, namely, at the stage of the hearing of the earlier Chamber Summons and at the hearing of the earlier Motion, the Plaintiff was very much aware of the death of the deceased Defendant No.1. Therefore, the present Chamber Summons is not maintainable and should be dismissed on the ground of suppression of material facts. :3: 5. After this matter was argued for some time and the attention of the Counsel appearing for the Plaintiff was invited to the order dated 31st July 2003 in Chamber Summons 644 of 2003 and since I was inclined to reject this Chamber Summons. In the light of this order, the Counsel prays for leave to withdraw this Chamber Summons with liberty to file a fresh Chamber Summons after obtaining all particulars with regard to the death of deceased Defendant No.1, his heirs and legal representatives, if any. The Chamber Summons is dismissed as withdrawn with liberty as prayed. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)