SAM EXPORTSversusHINDUSTAN OIL MILLS AND ANR.

2026:BHC-AS:35321

              Vaishnavi                                               26-WP-1998-2016


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                     WRIT PETITION NO. 1998 OF 2016

              Sam Exports                                            ...Petitioner

                                    V/s.

              Hindustan Oil Mills and Anr.                          ...Respondents
                                               ________________
              Mr. Rohan Sathaye a/w Mr. Rihal Kazi, Mr. Guru Shanmugam, Ms. Zainab
              Tinwala, Mr. Mayur Pumnani i/b M/s M and M Legal Ventures, for
              Petitioner.
              Mr. Rashid Khan with Mr. Aarif Dhariwala i/b Mr. Rakesh Kumar Singh,
              for Respondent Nos. 2 and 3.
              Mr. Rohan Savant a/w Ms. Kritika Mundra and Ms. Drisuti Ojha i/b TRD
              Associates, for proposed Respondent No. 4 and 5.
                                               ________________


                                                          CORAM: SANDEEP V. MARNE, J.

                                                          DATED: 19 AUGUST 2026


              P.C.:


              1)          By this Petition, Petitioner has challenged order dated 5 February
              2014 passed by the learned Judge, City Civil Court, Greater Bombay,
              dismissing Chamber Summons No. 641 of 2013 and declaring that the
              suit against Defendant No. 1 shall stand abated.


              2)          It must be observed at the very outset that under Order XLIII
              Rule 1, Clause (k) of the Code of Civil Procedure (Code) ordinarily an

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appeal lies against an order made under Rule 9 of Order XXII refusing to
set aside abatement or dismissal of a suit. Accordingly, the Petitioner had
filed Appeal form Order No. 463 of 2014. However, for reasons unknown
at this juncture, the Appeal from Order was withdrawn by order dated 12
February 2016 with liberty to file a Writ Petition. Accordingly, the present
Writ Petition has been filed. The impugned order has been passed on 5
February 2014 and by now period of 12 long years has passed. The
present Petition itself has been pending for the last 10 long years. If at
this stage, the Petitioner is driven back to the remedy of filing an AO, the
same would result in further delay in the proceedings. It is on this count
that this Court proceeds to ignore the availability of remedy of filing a
statutory appeal against impugned order and entertain the present
Petition filed under Article 227 the Constitution of India.


3)          I have heard Mr. Sathaye, the learned counsel appearing for the
Petitioner, Mr. Khan, the learned counsel appearing for Respondent No. 2
to 3 and Mr. Savant, the learned counsel appearing for Respondent No. 4
and 5 and have considered the submissions canvassed by them.


4)          Defendant No. 1 passed away on 10 June 2010. It is the
Petitioner’s case that it came to know about the death of Defendant No.
1 in July 2010. Accordingly, the Advocate of the Petitioner sent a letter to
the Advocate who represent Defendant No. 1, calling upon him to bring
on record the legal heirs of deceased Defendant No. 1 by amending the
pleadings. Apparently, there was no response to the letter dated 6 July
2010 from the Advocate of deceased Defendant No. 1. The Petitioner
thereafter addressed letter dated 11 October 2011 to the Advocate of

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Vaishnavi                                             26-WP-1998-2016


deceased Defendant No. 1, requesting for the names of legal heirs. Again,
no response was received. The Petitioner once again wrote to the
Advocate of deceased Defendant No. 1 on 10 September 2012, requesting
for names of legal heirs and issuing a threat that, if names of legal heirs
were not communicated, further steps would be taken on an assumption
that there are no legal heirs of Defendant No. 1.


5)          Since no response was given to third letter dated 10 September
2012, the Petitioner was compelled to file Chamber Summons No. 1075
of 2012 for appointment of Administrator General in respect of
Defendant No. 1, since names of legal heirs were not known. The
moment Chamber Summons No. 1075 of 2012 was served on Advocate of
Defendant No. 1, an immediate response was received on 5 February
2013 and the Advocate for deceased Defendant No. 1 communicated
names of five legal heirs of Defendant No. 1. The Petitioner thereafter
filed Chamber Summons 641 of 2013 on 31 March 2013 for bringing on
record the legal heirs of deceased Defendant No. 1.


6)          Considering the above position, it is difficult to hold that
Petitioner was negligent in not taking any steps to bring on record the
legal heirs of Defendant No. 1.


7)          Much is sought to be said in respect of relationship between
partner of the Petitioner and deceased Defendant No. 1. True it is that, in
paragraph 2A of the plaint, Plaintiff has admitted that one of the
partners of the Plaintiff, Mr. Altaf J Hamid is closely related to the
proprietor of Defendant no. 1. Mr. Sawant has highlighted the position

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Vaishnavi                                             26-WP-1998-2016


that the partner of the Plaintiff had attended wedding of a legal heir of
Defendant No. 1 from one branch (first wife) and an Arangretram
program of legal heir of Defendant No. 1 through another wife. However,
merely because the partner of the Plaintiff may have the attended social
functions of heirs of Defendant No. 1, the same would not ipso facto lead
to an assumption that he had knowledge of names of all legal heirs of
Defendant No. 1. The City Civil Court itself has not recorded any positive
finding about knowledge on the part of Plaintiff of names and addresses
of all legal heirs of the deceased Defendant No. 1. In my view therefore,
the Trial Court has unnecessarily taken into consideration the
relationship between the other partner of the Plaintiff and proprietor of
Defendant No. 1 for the purpose of recording a finding as if Plaintiff was
deliberately not taking any steps for bringing on record legal heirs of
Defendant No. 1. On the contrary, there is sufficient material on record
to infer that Plaintiff was vigilant in respect of the matter and was
repeatedly calling upon the Advocate of Defendant No. 1 for furnishing
the names of legal heirs.


8)          Reliance by Mr. Savant on judgment of the Apex Court in Balvant
Sing (Dead) V/s. Jagdish Sing and Ors. 1, does not cut any ice. The case
before the Hon’ble Apex Court involved failure on the part of legal heirs
of the Appellant to bring themselves on record within a reasonable time.
In the present case, the issue is about bringing legal heirs of opposite
party, who has passed away during pendency of the Suit. It is not
necessary that in every case, Plaintiff must be aware of names of all legal
heirs of opposite party. On the other hand when prosecution of the

1    (2010) 8 SCC 685

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Vaishnavi                                            26-WP-1998-2016


proceedings passes away, it is unnecessary to inquire about names of
legal heirs and straightway application can be filed by the legal heirs
themselves. However, when the opposite party dies, the application
cannot be filed without first knowing the names of all legal heirs.


9)          So far as, the judgment of the Apex Court in Om Prakash Gupta
alias Lalloowaand Ors. V/s. Satish Chandra 2, is concerned, the same
essentially relates to the issue of duty cast upon the pleader to only
communicate the factum of death and absence of any duty to
communicate the names of legal heirs. The judgment, in that sense does
not deal with the issue of demonstration of sufficient cause in applying
for setting aside the abatement upon death of a Defendant in the suit.
Judgment of Andra Pradesh High Court in Gurjala Bharathi and Anr. V/s.
Vindhay Corporation and Ors.3 is again on the same point of absence of
any provision for giving intimation about particulars of the legal
representatives.


10)         The judgment of the Apex Court in Katari Suryanarayana and
Ors. V/s. Koppisetti Subba Rao and Ors. 4 relied on by Mr. Khan, involved
dispute between the neighbors. There was delay of 7 years in bring on
record legal heirs despite having knowledge about death the opposite
party. In the facts of that case, the Apex Court has thought it appropriate
not to condone the delay.




2    2025 SCC OnLine SC 291
3    2007 SCC OnLine AP 470
4    (2009) 11 SCC 183

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                          11)         The judgment of this Court in Sojabai Babulal Chaudhari V/s.
                          Ramdas Shivram Chaudhari5 relied upon by Mr. Khan, involved a case
                          where the Second Appeal had remained pending for 8 long years without
                          moving even once and that factor is taken into consideration by this
                          Court for not condoning the delay of 1518 days is bring on record legal
                          heirs of the sole Defendant. The judgment is thus clearly distinguishable.


                          12)         Considering overall conspectus of the case, in my view, an
                          opportunity needs to be granted to Plaintiff to prosecute the suit on
                          merits. The suit is instituted against 2 Defendants. If the Suit is
                          permitted to be abated only against one Defendant, the trial therein
                          would seriously be impaired. It has been established that the Plaintiff
                          has been vigilant in respect of taking of steps qua the death of Defendant
                          No. 1. In my view therefore, in the facts of the present case, sufficient
                          cause is made out for setting aside the order of abatement by bringing on
                          record the legal representatives of Defendant No. 1.


                          13)         The Petition accordingly succeeds. The order dated 5 February
                          2014 passed by the Trial Court is set aside. Chamber Summons No. 641 of
                          2013 is made absolute in terms the prayers made therein. Necessary
                          amendments shall be carried out in the suit within a period of 4 weeks.


                          14)         The Writ Petition is allowed in above terms. There shall be no
                          order as to costs.




                                                                               [SANDEEP V. MARNE, J.]
                          5    MANU/MH/7667/2024
Signed by: VAISHNAVI MAHADEV
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SHEJAL                                                       19 August 2026
Designation: PA to Honorable Judge
Date: 28/08/2026 17:22:49