IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1286 OF 2008 CHAMBER SUMMONS NO. 1286 OF 2008 CHAMBER SUMMONS NO. 1286 OF 2008 IN IN IN SUIT NO. 576 OF 1981 SUIT NO. 576 OF 1981 SUIT NO. 576 OF 1981 The Cotton Corporation of India Ltd. ...Plaintiff vs G. Ramaswamy & Co. (Ganga Textiles) & Anr..Defendants Mr.U.M. Mahajan i/b. M/s.Divekar & Co. for the Plaintiff. Mr.Behram Shroff alongwith Mr.Ashok Verma i/b. M/s.Tejpal & Co. for the Defendants. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 15, 2008 DATED : SEPTEMBER 15, 2008 DATED : SEPTEMBER 15, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the plaintiff and Counsel for the defendants. 2. By this chamber summons, the plaintiff seeks review of the order dated 12th August, 2008 passed by this Court in the suit when it was placed for directions. The grievance is that though the matter was placed for directions, the said order has been passed. Brief facts are as under :- - 2 - 3. The plaintiff has filed a suit against a firm G. Ramaswamy and Co. (Ganga Textiles) and other defendant. The matter was referred to the Commissioner for recording the evidence. When the evidence was recorded by the Commissioner, it transpired that the firm G. Ramaswamy (Ganga Textiles) was not in existence any longer and it was taken over by a company known as Ganga Textiles. The Commissioner, therefore, expressed his inability to record the evidence and informed the parties to seek appropriate orders from the court. 4. On 28th September, 2007, the learned Single Judge of this Court (Mrs.Justice Ranjana Desai, J.) passed an order recording the fact that the plaintiff did not desire to amend the plaint and therefore, directed the Commissioner to proceed with his work. A new Commissioner was appointed on 22nd July,2008. In a meeting held before the Commissioner on 29th July, 2008, Counsel for defendant no.1 expressed his inability to proceed with the case since he had received no instructions from his client. Thereafter, the matter again was placed for directions on 12th August, 2008. - 3 - This Court directed that the plaintiff should delete defendant no.1 partnership firm and bring on record Ganga Textiles Limited and for that, four weeks time was granted to the plaintiff. 5. Thereafter, the present chamber summons is taken out by the plaintiff for recalling the said order. He submitted that an order already had been passed by this Court on 28th September, 2007 and therefore, there was no occasion for this Court to again pass a different order directing the plaintiff to add the company as defendant and delete the firm as defendant no.1 from the array of parties. 6. It is true that by order dated 28th September, 2007, the learned Single judge has made the following observations :- " The learned counsel for the plaintiffs states that the suit is for damages for breach of contract and it has rightly been instituted against G. Ramaswamy & Co. (Ganga Textiles) - 4 - and the plaintiffs do not desire to amend the plaint. If the plaintiffs are not willing to amend the plaint, the court cannot force them to amend the plaint. The plaintiffs will obviously take whatever consequence that flow from their not amending the plaint. The Commissioner may, therefore, proceed with his work. All contentions raised by both sides in respect of the change in the nature of 1st defendant company are kept alive." In view of this, there was no occasion for this Court, therefore, to give a direction to the plaintiff to delete defendant no.1. 7. Moreover, in view of the provisions of Order 22 Rule 10, it is upto the party to whom an interest has devolved to seek leave of the court for the purpose of being transposed as defendant. No such leave has been asked for by the company Ganga Textiles. In view of this, order passed by this Court dated 12th August, 2008 is recalled. - 5 - 8. It is clarified that since the plaintiff has chosen to continue with the suit against a non-existing party, which admittedly does not exist, the plaintiff may do so on his own risk. Mr.Mahajan, Counsel for the plaintiff submits that the plaintiff shall do so at his own risk. 9. In view of this, Chamber Summons is allowed. Order dated 12th August, 2008 is recalled. Place the suit for further directions. 10. Time granted to the Commissioner to submit a report is extended by eight weeks. 11. S.O. eight weeks. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)