-#- MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1903 OF 2007 IN SUIT NO.229 OF 1989 Nirlon Limited (Formerly known ) as Nirlon Synthetic Fibres & ) Chemicals Ltd. )..Plaintiffs Versus Chhaganlal & Sons & Ors. ..Defendants And Kamlaben Mansukhbhai Desai & Anr..Respondents Mr. J.P.Sen with Mr. Megul A. Shah for the Plaintiffs Mr. Virag V. Tulzalpurkar, Senior Counsel with Ms. Maneesha Kongovi i/b.Bharucha & Partners for Defendant No.2. CORAM: S.J.VAZIFDAR, J. CORAM: S.J.VAZIFDAR, J. CORAM: S.J.VAZIFDAR, J. DATED: 6TH AUGUST, 2008 DATED: 6TH AUGUST, 2008 DATED: 6TH AUGUST, 2008 P.C.: P.C.: P.C.: . This is the Plaintiffs’ Chamber Summons for condonation of delay in taking out proceedings for setting aside the abatement of the suit and to amend the plaint inter alia by impleading the heirs of Defendant No.1, who expired on 27th July, 1999. 2. Delay is the only ground on which the application is opposed by Defendant No.2. Although there is a delay of over eight years in taking out this application I am inclined to grant the same. 3. Mr. Tulzapurkar, relied upon the judgments of the Supreme Court in Union of India vs. Ram Union of India vs. Ram Union of India vs. Ram Charan (deceased) through his Legal Representatives, Charan (deceased) through his Legal Representatives, Charan (deceased) through his Legal Representatives, AIR 1964 S.C. 215, Ram Kala vs. Deputy Director AIR 1964 S.C. 215, Ram Kala vs. Deputy Director AIR 1964 S.C. 215, Ram Kala vs. Deputy Director (Consolidation) & Ors., (1997) 7 S.C.C. 498 and (Consolidation) & Ors., (1997) 7 S.C.C. 498 and (Consolidation) & Ors., (1997) 7 S.C.C. 498 and Kartar Chand & Ors. v. Jowala Singh, AIR 1979 Kartar Chand & Ors. v. Jowala Singh, AIR 1979 Kartar Chand & Ors. v. Jowala Singh, AIR 1979 Delhi 49 Delhi 49 Delhi 49. He submitted that there is no averment that the Plaintiffs were not aware of the death of Defendant No.1 on that very day. I do not agree. . The affidavit in support if read as a whole clearly indicates that the Plaintiffs’ case is that it was not aware of the death of the deceased till it was informed of the same at the time of the hearing on 29th August, 2007 by the Advocates of Defendant No.2 for whom Mr. Tulzapurkar appears. It is pertinent to note that on that day the Plaintiffs had kept the draft issues ready. In fact on 17th August, 2007 the matter was listed on board for framing of issues and was adjourned by the Court to 29th August, 2007. It is pertinent to note that on 17th August, 2007 Defendant No.2 had appeared through their Advocate. No statement was made before that Court on that date that the suit had abated on account of the death of Defendant No.1. A fair reading of the affidavit in support clearly indicates that the Plaintiffs have contended that they were not aware of the death of the deceased until they were so informed by the Advocate of Defendant No.2 at the hearing held on 29th August, 2007. 5. In respect of the above judgments, it is important also to note that Defendant No.2 has, save as mentioned later, not adduced any evidence to indicate that the plaintiff was aware of the death of Defendant No.1 at any time prior to 29th August, 2007. . In Union of India vs. Ram Charan (supra) Union of India vs. Ram Charan (supra) Union of India vs. Ram Charan (supra) the Supreme Court has observed that ;- "...... It is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts if he had made any efforts on having some cause to apprehend that the respondent might have died." No such cause has been indicated by Defendant No.2 causing the Plaintiff to apprehend that Defendant No.1 had expired. Thus on facts I am satisfied that the Plaintiffs did not have knowledge of the death of Defendant No.1 upto 29th August, 2007. This is, however, subject to what I will mention immediately next. 6. The Plaintiffs have fairly stated in the affidavit in support that another Suit bearing affidavit in support that it had also filed suit No.2331 of 1988 had been filed by it in this Court against the Defendant Nos. 1 and 2. In that suit a Chamber Summons namely Chamber Summons No.1434 of 2006 was taken out for similar reliefs. By an order dated 19th July, 2007 that Chamber Summons has been made absolute. 7. It is true, therefore, that technically the Plaintiffs must he deemed to have had knowledge of the death of Defendant No.1 atleast by the date indicated in the said Chamber Summons No.1434 of 2006. There is a delay, therefore, between August, 2006 and the date on which the present Chamber Summons was taken out namely 19th November, 2007. 8. To my mind, however, there is satisfactory explanation to this in paragraph 4 of the affidavit in support of the Chamber Summons. The Officers attending to both these litigations as well as the Advocates engaged in both these litigations are different. It is possible, therefore, that the information may not have been communicated by the one to the other. This, to my mind, constitutes sufficient ground for condonation of delay. 9. I have gone through the entire roznama. Barring a few occasions, the Plaintiffs have remained present, throughout the nineteen years that this litigation has been pending. Interlocutory proceedings have been adopted which have been prosecuted. In these circumstances there is no justification in refusing the reliefs claimed. 10. In the circumstances Chamber Summons made absolute in terms of prayer clauses (a), (b) and (c). The operation of this order is stayed for a period of six weeks from today. Amendment shall be carried out within 12 weeks from today. .......