: 1 : SD 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.245 OF 2006 SUMMONS NO.245 OF 2006 SUMMONS NO.245 OF 2006 IN IN IN SUIT SUIT SUIT NO.1222 OF 1982 NO.1222 OF 1982 NO.1222 OF 1982 Panjusons ...Plaintiffs V/s. Ramnarayan Zagdusingh Thakur . and Ors. ...Defendants Mr.U.A. Mahajan, Advocate, i/b. Divekar & Co., for the Plaintiffs. Mr.M.U. Pandey, Advocate, for Defendant Nos.1 and 2. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 30TH AUGUST, 2008. : 30TH AUGUST, 2008. : 30TH AUGUST, 2008. P.C.: P.C.: P.C.: . This Chamber Summons is taken out by the Plaintiffs to bring legal heirs of the Defendant Nos.1 and 2 on record. There is no dispute between the parties as to whether the cause of action survives, but the Defendant’s legal heirs and representatives opposed the Notice of Motion strongly on the ground of limitation. The case of the Plaintiffs for seeking condonation of delay in taking out the Chamber Summons is as under. : 2 : 2. The Plaintiffs is a Partnership Firm. It is a firm carrying on business of building and development. Mr.Mansur Panjwani was one of the partners of the firm and was looking after the prosecution of this Suit since beginning. This Suit was filed long back in 1982. In 1997 the Defendant No.2 died. The Plaintiffs were not aware of his death but learnt about it only in December, 2002 when the Defendant’s Advocate informed their Advocate about it. 3. The Defendant No.2 died in 1997. The information was transmitted promptly to the Plaintiff’s Advocate. 4. The Plaintiff’s partner Mansur Panjwani was suffering from serious ailments since 1997. He underwent various surgical operations, suffered various serious health problems and remained bedridden since then. His health thus did not permit him to approach his Advocate and instruct him to take out this Chamber Summons until 20th February, 2006. On this ground, the Plaintiffs sought condonation of delay. : 3 : 5. The Defendant No.1 died on 3rd November, 2005. This information was given on 5th December, 2005 to the Plaintiff’s Advocate. The Defendants opposed the Notice of Motion saying that the case of the Plaintiffs in respect of the illness of the Plaintiff’s partner Mr.Mansur Panjwani since 1997 etc. is not believable. They suggested that the Plaintiff’s other partners could have taken care of the case etc. The question is whether the delay deserves to be condoned. The answer to this is in affirmative. REASONS REASONS REASONS 6. As far as the death of the Defendant No.1 is concerned, it occurred on 3rd November, 2005 and the information about it was admittedly received by the Plaintiff’s Advocate on 5th December, 2005, and within three months thereof, the Chamber Summons was taken out. I don’t think at-least in this case there is any delay caused. 7. The objection as regards the delay in taking out the Chamber Summons in respect of the Defendant No.2’s death is quite serious. There : 4 : is admittedly gross delay in taking out this Chamber Summons to that extent. I should assume that from the date of information received by the Plaintiff’s Advocate about the death of the Defendant No.2, the limitation would start running. The information about the Defendant No.2’s death was received on 30th December, 2002. From that day within 90 days, the Chamber Summons was required to be taken out. What happened thereafter between the Plaintiffs interse and the Plaintiffs on one side and their Advocate on the other from 30th December, 2002, till the date of the Chamber Summons i.e. 20th February, 2006, must be narrated so as to seek condonation of delay. All that is stated in the two affidavits filed on record is that Mr.Mansur Panjwani was exclusively looking after the prosecution of this Suit. He became seriously ill since 1997 and remained bedridden till today. 8. The numbers of ailments mentioned in the affidavit and the nature of the treatment Mr.Mansur Panjwani was undergoing convinces me of the fact that he was totally disabled for quite some time and was not in a position to : 5 : prosecute this Suit. Naturally it was necessary for the other partners to take care of this case. The question is did they act diligently? The answer to this appears to be in negative. Belatedly in 2006 one of the other partners approached their Advocate and they took out this Notice of Motion. It was necessary for this partner who filed his affidavit to explain as to why the other partners did not act diligently and did not come within reasonable time to the Court. The Plaintiffs being a Partnership Firm of builders and developers are not expected to sleep over a matter of this nature. This is a Suit for specific performance of agreement to sale of a big piece of land (170 acres) in the Greater Bombay area. Although the partner who filed his affidavits has not explained this laps and although it is almost unpardonable, I am inclined to condone the delay because I think such an important Suit should be decided on merits rather than allowing it to get abated. 9. Mr.Mahajan, the learned Counsel appearing for the Plaintiffs has placed reliance on the two Supreme Court Judgments reported in AIR 1998 SC 3222 in the matter of N. : 6 : Balakrishnan V/s. M. Krishnamurthy and AIR 2003 SC 4244 in the matter of Mithailal Dalsangar Singh & Ors. V/s. Annabai Devram Kini & Ors. The Hon’ble Supreme Court held that the Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. 10. In my view, the facts in this case do not show that although the Plaintiffs were negligent and did not take steps in time, this inaction was not deliberate and so it was not an instance of misconduct. This was their Suit. Apparently, the Suit involves quite a valuable property. Neglecting such an important Suit was certainly not beneficial to the Plaintiffs-Firm, neither it was detrimental to the interest of the Defendants. 11. I think in this case I should not be too strict in appreciating the case of the : 7 : Plaintiffs. The Chamber Summons deserves to be allowed. Hence the following order :- "O "O "O R D E R" R D E R" R D E R" "The Chamber Summons is allowed in terms of prayer clauses (1), (2) and (3). The Plaintiffs shall effect amendment in the plaint within a period of two weeks from today and serve the copies of the amended plaint to the newly added Defendants within a period of four weeks thereof." [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]