IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1071 OF 2008. CHAMBER SUMMONS NO.1071 OF 2008. CHAMBER SUMMONS NO.1071 OF 2008. IN IN IN SUIT NO.3151 of 1990. SUIT NO.3151 of 1990. SUIT NO.3151 of 1990. Reshma Potdar & Anr. ..Plaintiffs versus Sureshchandra B. Kotkar & Ors. ..Defendants Mr.Prakash Ganwani i/b.Vinod Mistry & Co. for the Plaintiff Mr. I.M.Vora i/b. Bipin Joshi for the Defendant Nos.1 & 2 None for the defendant Nos.3, 4 and 5 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 29th August, 2008. DATED : 29th August, 2008. DATED : 29th August, 2008. P.C. 1. Learned Advocate Mr. Ganwani stated across the bar that the Chamber Summons has been served upon the defendant Nos.3 to 5. He further stated that learned Advocate Mr. Ketan Chokani telephoned him in the morning and informed him that he ( Mr. Chokhani) is instructed to appear on behalf of defendant Nos.3, 4 and 5. Mr. Ganwani, therefore, submitted that the services of the Chamber Summons upon the defendant Nos.3, 4 and 5 is complete and because defendant Nos.3, 4 and 5 are absent, Court should take up hearing of the Chamber Summons. Mr. -2- Ganwani undertakes to file affidavit of service so far as the defendant Nos.3, 4 and 5 before the next date. 2. In the aforesaid circumstances, I am inclined to take up the Chamber Summons for hearing. The suit came to be filed by the plaintiff for possession of the suit over the flat No.A-2 on the ground that Snehalata, deceased executed a Will in the year 1987 and bequeathed the flat No.A-2 in favour of the plaintiff No.1. Said Snehalata died on 16.4.1987 and that thereafter petition No.602 of 1990 was filed to take probate in respect of the Will of Snehalata and that by Order dated 25.6.1993 the said probate is obtained. He pointed out that the plaintiffs claim over the suit flat was on the strength of the Will of Snehalata, and now that the Probate has been granted the plaintiffs wish to amend the plaint for the purpose of placing before the Court the facts regarding particulars of the properties more particularly set out in the amendment. Mr. Ganwani submitted that the amendment is made to place true facts on record and enable the Court to decide the rival contentions between the parties -3- and to strengthen the case of the plaintiff No.1 that that plaintiff No.1 has right over the suit flat. 3. Learned Advocate Mr. Vora appearing on behalf of the defendant Nos.1 and 2 submitted that the Chamber Summons is taken out in the year 2008, though the probate was granted in the year 1992 and in the affidavit in support of the Chamber Summons no light is drawn as to why the Chamber Summons was not taken out since after the grant of the probate. According to him the delay is against the interest of the plaintiff and hence the Chamber Summons should be dismissed.. 4. I have considered the rival contentions. It is true that the Chamber Summons is taken out at late stage of the entire matter in as much as the probate came to be granted in the year 1992, nothing has prevented the plaintiff to take out the Chamber Summons immediately. No explanation is found in the affidavit in support. However, it does not mean that the plaintiff’s request should be rejected because the contents of the draft amendment as such would go to the root of the -4- matter and are necessary to resolve the controversy between the parties. It is clear that at the time when the suit was filed, the suit came to be filed on the strength of the Will and at the relevant time the probate petition was not filed. Grant of probate is a subsequent development in favour of the plaintiff. Hence amendment is required to be granted. In the facts and circumstances, I am not inclined to saddle the plaintiff with costs. Hence the Order. ORDER i. Chamber Summons is made absolute in terms of prayer clause (a). ii. There shall be no order as to costs. iii. Plaintiffs to carry out the amendment on or before 10.9.2008 and serve copy of the amended plaint upon the advocate for the defendants on or before 20.9.2008. iv. Suit set down for directions on 22.9.2008. -5- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)