1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.819 OF 2009 IN SUITNO.59 OF 1984 Shantilal M. Kothari and anr. ..Plaintiffs. Vs. Manoharlal A. Agarwal and anr. ..Defendants. And Sushiladevi S.Kothari and ors. ..Respondents. Ms.Preeti Shah for the plaintiffs. Mr.Swananda Ganoo i/by Kanga & Co. for the Defendant No.3, 3(B), 3(D), 3(E), 3(A,) 3(F), 3(G), and 4A to 4F. CORAM : R.S. MOHITE, J. DATE : 06th July, 2010 PC : 1 This is a chamber summons taken out by the original plaintiff No.2 for amending the plaint. The amendment sought is as per the Schedule. Clause 1 of the Schedule pertains to bringing on record the heirs of the plaintiff No.1. It is an admitted position that the plaintiff No.1 and the plaintiff No.2 are the real brothers. Plaintiff No.1 expired on 29.5.1986. There is thus delay of about 23 years in seeking to bring his heirs on record. On perusal of the affidavit in support, I find that there is no proper explanation given for the delay of 23 years in bringing the heirs of the plaintiff no.1 on record. Amendment in terms of prayer clause 1 of the 2 Schedule cannot be granted. In so far as clause -2 of the Schedule is concerned, the same seeks to bring on record the assignee of the original Plaintiff No.2. The said assignment is said to have taken place in the year 1985 i. e. after filing of this suit. That assignment constitutes a separate cause of action. Assignees also sought to be added are in my view, are not necessary parties for deciding the question of the suit agreement executed in 1980. The amendment sought in clause Nos. 3 and 4, in my view, ought to be granted as the same pertains to bringing the heirs of defendant No.1 and defendant No.3 on record. It is true that the defendant No.1 expired in the year 1990 and defendant No.2 expired in 2001. However, in the affidavit in support of the chamber summons it has been contended that pending the suit on dated 14.10.2008, the Advocate for the plaintiff no.2 addressed a letter to the Advocate for the defendant Nos. 1 and 2 only to inform them she has filed her Vakalatnama. But by way of replies they learnt that the defendants had expired. Reply given by the Advocate for the defendant No.1 was dated 15.10.2008. Thereafter there is a reference made to certain correspondence to determine who are the heirs of the deceased defendants and their names were informed by the Advocate for the defendants by their letter dated 24.11.2008. It is true that even thereafter there is a short delay of about six months in taking out the chamber summons. However, as regards this period of delay it is 3 mentioned that plaintiff No.2 was a heart patient suffering from diabetic and other ailments. In my view, in so far as bringing the heirs of defendants are concerned, said amendment can be allowed subject to payment of costs. In so far as other amendment sought, consequent to what is stated hereinabove, in my view , amendment in terms of Paragraphs 7,8,9 and 10 (except bracketed portion) can be granted. Chamber summons is therefore, partly made absolute in the aforesaid terms subject to payment of costs of Rs.3000/- which will be payable to the defendants through their Advocate. Amendment to be carried out within 6 weeks from today. Chamber summons stands disposed off. (R.S. MOHITE,J.)