1 srk app-L-690-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO.690 OF 2010 IN CHAMBER SUMMONS NO.1154 OF 2010 IN SUIT NO.4913 OF 2000 Mr. Nadeem M. Oomerbhoy ... Appellant Versus Mr. Majid Oomerbhoy (since deceased) and others. ... Respondents ALONGWITH APPEAL (LODGING) NO.691 OF 2010 IN CHAMBER SUMMONS NO.1152 OF 2010 IN SUIT NO.4913 OF 2000 Mr. Nadeem M. Oomerbhoy ... Appellant Versus Mr. Majid Oomerbhoy and others. ... Respondents Mr. Chirag Balsara i/by M/s. Thakore Jariwala & Associates for the appellant. Mr. Rahul Narichania with Ms. Adini Prabhu i/by M/s. Desai, Desai, Carrimjee & Mulla for respondent No.2. Mr. Shailesh Thakkar for the appellant in Appeal (L) Nos.727 and 735 of 2010. CORAM : MOHIT S. SHAH, C.J. & DR. D.Y. CHANDRACHUD, J. Tuesday, October 26, 2010 P .C. These appeals, filed by Nadeem, son of deceased plaintiff, are directed against the order dated 27 September 2010 of the learned trial Judge passed in Chamber Summons No.1152 of 2010 granting the amendment to bring on record the heirs of deceased plaintiff Majid Ahmedbhai Oomerbhoy 2 srk app-L-690-10.sxw and to show Nargis, Nadeem and Heena as heirs of deceased plaintiff. The learned trial Judge further clarified that after carrying out the amendment, it would be open to Nargis and Heena not to continue as plaintiff and to make application to the Court for transposing them as party defendants. 2. The learned counsel for the appellant Nadeem (original respondent No.3) submits that the appellant alone is entitled to be brought on record as the heir of deceased plaintiff and that Nargis, wife of the deceased plaintiff and mother of the appellant Nadeem is not interested in being brought on record as plaintiff in Suit No.4913 of 2000 which is filed for dissolution of partnership and for accounts and that Heena, daughter of the deceased and sister of the appellant is not entitled to be brought on record as heir of the deceased plaintiff. 3. It is submitted that the impugned order cannot be implemented as the appellants Nargis and Heena would have to be represented by common advocate for being brought on record as the heirs of deceased plaintiff and since they are not ad idem, it would not be possible to carry out the amendment. Hence, transposing Nargis and/or Heena as defendants will also become indefinitely delayed. It is, therefore, submitted on behalf of the appellant that without prejudice to the rights and contentions of Nargis and Heena, the appellant may be brought on record as the heirs of the deceased plaintiff and that Heena may be shown as defendant in Suit No.4913 of 2000. 4. The learned counsel appearing for Nargis and Heena states that Nargis has not claimed any share in the partnership property and that Heena is entitled to claim her share in the property left by the deceased plaintiff. The learned counsel further states that Heena, daughter of the deceased plaintiff 3 srk app-L-690-10.sxw and sister of the appellant should be shown as defendant in the suit. 5. The learned counsel for respondent No.2 (original defendant No.1) submits that the disputes between the appellant and his sister Heena cannot be decided in the suit for dissolution of partnership and that the pendency of the suit dispute results into delay and that the partners of the partnership firm are facing serious prejudice on account of insolvency proceedings threatened against them by the third party creditor. 6. In view of the above, having heard the learned counsel for the parties, we are of the view that interest of justice will be served if these appeals are disposed of in terms of the following directions: (i) The appellant Nadeem Oomerbhoy will be shown as plaintiff in suit No.4913 of 2000. (ii) Heena, daughter of deceased plaintiff Majid Oomerbhoy will be shown as defendant No.9 in the suit. (iii) Since Nargis, widow of deceased plaintiff is not interested in claiming any share in the partnership property, she is not being shown as plaintiff or the defendant. (iv) The dispute between appellant Nadeem and defendant No.9 Heena will not come in the way of the trial Court in deciding the suit for dissolution of partnership and for accounts and passing passing appropriate orders on the applications which may be made in the suit. 4 srk app-L-690-10.sxw v) It would be open to the appellant to take out separate proceedings for adjudication of the dispute between appellant Nadeem and sister Heena. vi) Pending such adjudication, the trial Court may pass appropriate orders in suit No.4913 of 2000 for keeping aside the share of deceased plaintiff in the partnership property and such share shall abide by the outcome of the adjudication between appellant Nadeem and defendant No.9 Heena. vii) It is clarified that share in the entitlement of deceased plaintiff in the partnership property would mean share in the balance amount/remaining property after meeting the liabilities of the firm.. viii) Defendant No.9 will file written statement in Suit No.4913 of 2000 by 30 November 2010. ix) Appellant will file affidavit in evidence by 20 December 2010. 7. All the interim applications in Suit No.4913 of 2000 shall also stand amended in terms of the above order. 8. It will be open to defendant No.1 to carry out amendment in terms of the above directions and this shall be done by 20 November 2010. 5 srk app-L-690-10.sxw 9. By consent of the learned counsel for the parties, we clarify that it will be open to the learned trial Judge to appoint a Chartered Accountant with expertise in valuation of properies for submitting the report on such issues as the learned trial Judge may consider appropriate for determining the shares/entitlement of the parties. 10. While determining such shares. assets and properties of the firm in terms of money, the Chartered Accountant may also be informed that the share of the deceased plaintiff is to be kept apart and that the dispute between the appellant Nadeem and Sister Heena is to be decided in separate proceedings. 11. Since we are informed that the trial Court has already passed an order to consolidate the present suit i.e. suit No.4913 of 2000 with suit Nos.722 of 1992, 671 of 2002 and 547 of 2003, all the suits shall be tried and decided as expeditiously as possible. 12. We have not gone into the merits of any of the controversies which are the subject matter of the above suit. The appeals accordingly stand disposed of in the above terms. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.