1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION CHAMBER SUMMONS NO. 2051 OF 2007 IN SUIT NO. 3693 OF 2003 Master Neeraj son of Shyam Choudhary. ... Plaintiff. V/s. Sneha, daughter of Shyam Choudhary & Ors. ... Defendants. And Kamladevi Ramlal Choudhary & Ors. ... Respondents. Mr. N. Parekh i/b. Mr. Hiralal & Co. For the Plaintiff. Mr. R.P. Joshi for Defendants 6 & 7 & Respondents 2,3 and 5. Mr. M.R. Deshpande for Respondents 6 to 8.. CORAM : S.C. DHARMADHIKARI, J. DATE : 30TH SEPTEMBER 2008. P.C. :- This Chamber Summons is filed by the Plaintiff to condone the delay, set aside abatement of the suit and to grant liberty to amend the plaint in the manner more particularly set out prayer clauses (d) and (e). 2. In the affidavit in support the Plaintiff has pointed out that at the 2 time of filing of the suit he was a minor, he filed it through the mother and natural guardian, now he has become a major and therefore, the title of the plaint be allowed to be amended so also consequential amendment setting out his majority. 3. He has also pointed out that during the pendency of the suit, original Defendant No.3 has died and he has left behind her Defendant Nos. 4 and 5 as heirs and legal representatives. In such circumstances, the plaint be allowed to be amended to mention that these Defendants will also stand impleaded as heir and legal representatives for Defendant No.3. Further, it is pointed out that Respondent Nos.1 to 3 are interested in the suit property as per averments in paragraphs 4 and 5 of the affidavit in support and they therefore, be permitted to be joined as party Defendant Nos. 8 to 10 in the present suit. There are further facts which are set out in the Chamber Summons and it is contended that they enable the Plaintiff to amend the plaint. These are events which have occured after filing of the suit or in any event the facts set out came to the knowledge of the Plaintiff after the suit was filed. 3 4. There is an affidavit of Defendant No.5, and Defendant No.7 who opposed the Chamber Summons and pleas to set out therein, apart from delay is that Respondent Nos. 6 to 8 are that they are not mecessary and proper parties, that there are certain suits and proceedings which are filed by Defendant Nos. 4 and 5 against the deceased mother. 5. There are various pleas raised with regard to the maintainability of the instant suit and in the other paragraphs of the affidavit in reply they are raised and the statements made in the affidavit in support of the Chamber Summons are dealt with. 6. The rejoinder affidavit of the Plaintiff has also been filed and the reply of Defendant No.7 has deen dealt with in detail. 7. The other Defendants have not filed any affidavit in reply opposing the prayers in the Chamber Summons. In fact, Defendant Nos.4 and 5 do not dispute that they represent the estate of the deceased Defendant No.3 and therefore, can be impleaded in that capacity as well. 4 8. I have heard Mr. Parekh, learned Counsel appearing for the Plaintiff and the learned Counsel for the Defendants/Respondents. I have Perused the Chamber Summons and the affidavits filed in reply and rejoinder. 9. The learned Counsel appearing for the contesting Defendants does not seriously oppose the amendment to the plaint on the ground that heirs and legal representatives of Defendant No.3 must be brought on record. Defendant Nos. 4 and 5 are such heirs and legal representatives and they can be impleaded in that capacity. However, he contends that Defendant No.6 is also a heir and legal representative of deceased Defendant No.3 and merely because the Plaintiff has not chosen to implead him/her in that capacity does not mean that the estate is not presented by him/her. 10. In my view, in the light of concession of the parties before me, I have no hesitation in condoning the delay in bringing the legal heirs and representatives of the deceased Defendant No.3 on record. Accordingly, the plaint shall be permitted to be amended to implead the heirs and legal 5 representative of the deceased Defendant No.3. The contention of Defendant No.6 that he also represents the estate of the deceased Defendant No.3 can be considered by this Court at an appropriate stage and merely because the present Chamber Sumons is granted on the basis of the averments and statements in the affidavit in support does not preclude Defendant No.6 from raising appropriate pleas with regard to his right to claim any share or interest in the estate of the deceased. All contentions in that behalf are kept open. Further, subject to the pleas of Defendant No.7 with regard to maintainability of the suit the amendment is granted. It is subject to the same so also other pleas on merits. They can be raised and considered at an appropriate stage. 11. Accordingly, the Chamber Summons is made absolute in terms of prayer clauses (a) to (f). 12. As far as the prayers clauses (f),(g) and (h) are concerned, after the amendment is carried out, the Plaintiff is at liberty to take out appropriate proceedings and claim the same. Pleas of both sides in that behalf are kept open. 6 13. To enable the plaintiff to take out appropriate proceedings, ad- interim order passed by this Court on 14th January 2008 is continued for a period of 8 weeks from today. 14. Leave to amend is also granted to correct the address of Defendant Nos. 1 and 3. 15. The above reliefs are granted not only on the basis of the concession but the principles which are very well settled. Orde 22 of the Code of Civil Procedure Code provides for substituting the heirs and legal representatives in case of the death of the sole Plaintiff or several Plaintiffs, sole Defendant or several Defendants. The procedure is very elaborately set out and the legal position is now clarified by the Supreme Court in the case of Mithailal Dalsangar Singh V/s. Annabai Devram Kini (AIR 2003 S.C. 4244). The principles applied are liberal and as far as possible the Court must give opportunity to the parties to have their claims adjudicated and decided on merits. Delay in making applications of the present nature 7 have to be condoned by applying these liberal principles so also preserving the opportunity contemplated in law for adjudication on merits. All amendments to be carried out within two weeks. (S.C. Dharmadhikari, J.)