1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1853 OF 2007 IN SUIT NO. 2726 OF 2004 Rajkumar Pitamber Shumshere ....Plaintiff Versus Mrs. Gullu Adi Nazir & Ors. ....Defendants And Iqbal Mukadam @ Iqbal Ali Mohamed Mukadam & Anr. ....Applicants Ms. Neha P. Bhide, Advocate for the Applicants. Mr. Dara Zaiwala, Sr. Counsel a/w. Mr. Niranjan Lapasia i/b. M/s. Niranjan & Co., Advocate for Defendants. CORAM : R. V. MORE, J. DATE : 8th MARCH, 2010. P.C. : Heard Mrs. Bhide, learned Counsel for the Applicants and Mr. Zaiwala, learned Senior Counsel for Defendants. 2. The chamber summons is taken out by the Applicants to amend the plaint in terms of schedule annexed thereto. The Original Plaintiff filed the above suit for declaration that the clause 7(h) of the Deed of Conveyance dated 27th February, 1979 is valid, subsisting and binding on the Defendants. Under clause 7 (h) of the said conveyance, right of pre-emption was given to both original plaintiff and original purchaser viz. Ms. Pervin Mehta. Miss Parvin Mehta, subsequently died and at present the suit premises are occupied by her 2 sister’s children. In this backdrop, the Plaintiff filed the suit for the reliefs mentioned above. The Plaintiff died on 20th August, 2005 during the pendency of the suit and thereafter, his wife took out chamber summons for impleading herself in place of her husband. However, the wife also died on 21st May, 2006. The Original Plaintiff died leaving behind a Will in which the present Applicants are appointed as executors and the Applicants in that capacity have filed the present chamber summons. 3. Mr. Zaiwala, learned Senior Counsel appearing for the Defendants, opposed the chamber summons on two grounds i.e. there is a gross delay of 477 days in taking out the chamber summons and secondly, that the chamber summons is not maintainable as the suit stands abetted, as right to sue does not survive. 4. Having heard Mrs. Bhide, learned Counsel for the Applicants and Mr. Zaiwala, learned Senior Counsel for the Defendants, I find merit in the chamber summons. The Applicants have explained the delay by giving reasons in paragraph 11 of the affidavit in support to the chamber summons. It is averred that the Probate Petition filed by the Applicants in their capacity as the Executors and wife of the Original Plaintiff was granted on 7th March, 2007. Further, statement is also made that due to inadvertence and due to pre- occupation of the Executors, necessary application for amendment could not be filed within time. I find the above reasons satisfactory and therefore, sufficient to condone the delay. 3 5. So far as second ground of opposition viz. right to sue does not survive, is concerned, I do not find any merit in the same. The Original Purchaser – Ms.Pervin Mehta expired prior to the date of filing of the suit. Rights of Original Plaintiff were already crystallized before the date of filing of the suit. In order to decide entitlement of the Applicants to be impleaded in place of Original Plaintiff, roving enquiry is not necessary. The Applicants prima-facie have to show that after the death of the Original Plaintiff the right to sue survives. Since, I have come to the conclusion that the Applicants have prima-facie shown that right to sue survives, the present chamber summons deserves to be allowed. The chamber summons is therefore, disposed of, by passing the following order : 1. The chamber is allowed in terms of prayer clauses (a), (b) and (c). Necessary amendments be carried out by the Plaintiff within a period of two weeks from today and amended copy of the plaint be served on the Defendants within further period of two weeks. 2. The Defendants are entitled to file additional written statement, if so advised. 3. It is expressly made clear that the observations made hereinabove are prima facie and made only for the 4 limited purpose of disposing of this chamber summons and the Court deciding the suit finally shall decide the same independently on its own merits without being influenced by the observations made in this order. 4. Mrs. Bhide, learned Counsel for the Applicants, makes a statement that no third party interest will be created in the share of Original Plaintiff in the property mentioned in paragraph 1 of the plaint, during the pendency and final disposal of the suit. The statement is accepted. Sd/- (R. V. MORE, J.)