1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CHAMBER SUMMONS NO.48 OF 2010 IN TESTAMENTARY SUIT NO.4 OF 2005 IN TESTAMENTARY PETITION NO.178 OF 2004 Lalitkumar Dwarkadas Chapse & Anr. )..Petitioners V/s Pramathesh Chandrakant Kapadia )..Defendant ---- Mr.S. R. Tejpal @ Mr.A. Verma for the petitioners Mr.Ivor Peter D’cruz for the defendant. ---- Coram : R.S.MOHITE,J Date : 2/7/ 2010 PC 1 This is a Chamber summons taken out by the heirs of the original defendant who expired on 13.8.2009. It appears that when the Testamentary suit came up before this Court on 20.1.2010, since no application has been made by the heirs of the caveator within 90 days, the Court ordered that the caveat should be treated as abated and the office was to proceed with the suit. However, since then the suit has not been proceeded and is still pending. In the meanwhile, the present Chamber summons has been taken out for setting aside abatement and for bringing on record the applicant as the defendant in 2 the suit. I have perused the reasons given in the affidavit-in-support. It is contended on behalf of the original petitioner that the Chamber summons is not maintainable and the proper remedy is to file an appeal. In my view, heirs of the deceased person who come to know about the order of abatement can again apply for setting aside the abatement by seeking condonation of delay. In the circumstances, in the interest of justice and for the reasons which are stated in the affidavit in support of the Chamber summons, Chamber summons is allowed in terms of prayer clauses-(a) to (d). The petitioners/plaintiffs are directed to make the amendment within a period of four weeks from today. Chamber summons is however allowed subject to payment of cost of Rs.2000/- which would be paid to the Advocate for the petitioners within four weeks from today. Chamber summons stands disposed off accordingly. (R.S.MOHITE,J) 3 4