1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.277 OF 2009 IN CHAMBER SUMMONS NO.1599 OF 2007 IN SUIT NO.2769 OF 1987 Mr.Zarir Edi Mahava & Anr. .... Appellants V/s. Mrs.Roda Ferox Engineer & Anr. ..... Respondents Mr.Hiralal Thakker, Sr.Advocate, a/w Mr.Vinod Thakker, for the appellants. Mr.P.M.Rustamkha, for respondent NO.1. None for respondent No.2. CORAM : P.B.MAJMUDAR & R.C.CHAVAN, JJ. DATE : NOVEMBER 23, 2009 P.C. 1. With the consent of the learned counsel appearing for the parties, the matter is taken up for final hearing today itself. The appellants herein took out a Chamber Summons in Suit No.2769 of 1987 for bringing them on record as the heirs of deceased original plaintiff. The said prayer was made after about 17 years since the death of the original plaintiff. The learned Single Judge rejected the said prayer on the ground that it is filed after 17 years. 2. The learned counsel for the appellants submitted that the said suit is filed for partition and therefore, all the parties to the suit are required to be treated as if they are the plaintiffs. The 2 learned counsel for the respondents, on the other hand, submitted that it is not a suit for partition, but it is a suit for administration of estate of the deceased. The learned Single Judge by the impugned order rejected the prayer of the appellants for bringing them on record on the said suit on the ground of inadvertent delay of 17 years. The aforesaid order of the learned Single Judge is impugned at the instance of the heirs of the original plaintiff in this appeal. The learned counsel for the appellants submitted that looking to the nature of the suit, the learned Single Judge should have allowed the chamber summons and should have permitted the heirs of the original plaintiff to prosecute the suit. The learned counsel for the respondent submitted that since this chamber summons is filed after such a long time, the learned Single Judge was justified in dismissing the chamber summons for bringing the heirs on record as the suit can be said to be abated since long. 3. We have heard the learned counsel for the parties and have also gone through the order of the learned Single Judge. It is no doubt true that the chamber summons for bringing the appellants on record is filed after about 17 years. But, it is required to be noted that the suit was pending before the Single Judge of this Court since more than 17 years and even though, it is true that the heirs of the original plaintiff were not vigilant, considering the 3 nature of the suit, we are of the opinion that the heirs of the deceased original plaintiff should be allowed to prosecute the suit, as the parties to the litigation are near relatives. 4. Alternatively, the learned counsel for the respondents submitted that the appellants may be directed to pay necessary costs to the respondent. Considering the facts and circumstances of the case, the chamber summons preferred by the appellants in the suit is allowed. The appellants are permitted to be brought on record of the suit as heirs of deceased original plaintiff. We accordingly set aside the abatement of the suit and restore the suit to the file. Though, specific prayer is not made in the chamber summons for setting aside the abatement, since the prayer for condonation of delay is already made and when the delay is condoned, resultant effect would be that the abatement of the suit stands set aside. In this view of the matter, we condone the delay in preferring the chamber summons for bringing the heirs of the deceased original plaintiff on record of the suit and set aside the abatement of the suit. The appellants are directed to pay costs of Rs.10,000/- to the respondents within a period of two weeks from today. 5. Considering the facts and circumstances of the case, the learned Single Judge is requested to decide the suit within a period of six months from today. Both the learned counsel assured the 4 Court that they will co-operate in disposing of th suit and will not ask for any adjournment in the matter. Amendment in the cause title of the plaint to be carried out within a period of three weeks from today. The appeal is allowed to the aforementioned extent only. ( R.C.CHAVAN, J. ) ( P.B.MAJMUDAR, J.)